CASES 


ON 


THE 

AW  OF  DOMESTIC 
RELATIONS 


LONG 


INDIANAPOLIS 

THE  BOBBS-MERRILL  COMPANY 

PUBI  ISHFR<; 


l-8B27clo 

1  •■?'  i  5  , 


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UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


ILLUSTRATIVE  CASES 


ON 


THE  LAW  OF 

DOMESTIC  RELATIONS 


SELECTED  BY 

JOSEPH  R.  LONG 

Professor  of  Law  in  Washington  and  Lee  University 


Arranged  to  Accompany  the  Author's 
Text  on  the  Same  Subject 


INDIANAPOLIS 

THE     BOBBS-MERRILL    COMPANY 

PUBLISHERS 


'.  \ 


T 

\915 


Copyright 

1915 

BY 

JOSEPH  R. 

LONG 

■  1 

r-^^X. 

en 


PREFACE. 


This  collection  of  cases  on  the  Law  of  Domestic  Relations 
does  not  by  any  means  purport  to  embody  a  complete  exposition 
of  the  subject.  The  cases  are  intended  to  be  merely  illustrative 
of  a  text-book  setting  forth  the  subject  fully.  The  cases  have 
been  selected  witli  special  reference  to  the  importance  and  need 
of  illustration  of  the  several  points  covered.  Obsolete,  simple, 
or  relatively  unimportant  matters  have  been  omitted.  Care 
has  been  taken  to  include  only  cases  of  real  value  for  teaching 
purposes,  and  it  is  contemplated  that  there  should  be  no  selec- 
tion from  among  the  cases  but  that  the  student  should  read 
them  all.  In  most  instances  the  opinion  of  the  court  has  been 
printed  in  full.  Wherever  omissions  occur  this  fact  is  indicated. 
The  preliminary  statements  have  been  prepared  by  the  compiler. 
This  collection  was  prepared  more  particularly  for  use  with 
the  compiler's  own  text-book  on  the  subject,  and  references  are 
given  with  each  case  to  the  appropriate  sections  of  that  work. 
It  is  believed,  however,  that  these  cases  will  be  found  equally 
useful  with  any  other  text-book  on  the  subject. 

Lexington,  Virginia,  July,  191 5.  J-  R-  L. 


Ill 


TABLE  OF  CONTENTS. 

Page 

I.  Husband  and  Wife i 

Marriape    I 

1.  \\  hat  Constitutes  Alarriage I 

2.  Capacity  of  Parties 2 

a.  Consanguinity   2 

b.  Physical  Capacity ~ 

c.  Age 9 

d.  Mental  Capacity 1 1 

e.  Difference  of  Race 20 

f .  Prohibitions  After   Divorce 20 

3.  Realty  of  Consent 22 

a.  Duress 22 

b.  Fraud 28 

4.  Formalities  of  Celebration 32 

a.  Common-Law  Marriage 32 

b.  Necessity  for  Cohabitation 46 

c.  Statutory  Provisions 49 

d.  Marriage  of  Persons  Under  Disability  of  Prior  Marriage  58 

5.  Conflict  of  Laws 65 

a.  Marriages  Valid  Where  Celebrated 65 

( 1 )  In  General 65 

(2)  Marriages  in  Evasion  of  Law  of  Domicile 80 

(3)  Marriage  of  Divorced  Persons  Prohibited  to  Alarry  86 

b.  Marriage  Void  Where  Celebrated 99 

6.  Proof  of  Marriage 102 

Rights,   Duties   and   Transactions   of   Husband   and   Wife   as 

Between  Themselves 107 

1.  Right  to  Fix  Domicile 107 

2.  Duty  of  Husband  to  Support  Wife 107 

3.  Contracts  Affecting  Reciprocal  Duties 109 

4.  Wife's  Earnings  Under  Statutes 117 

5.  Wife's  Interest  in  Husband's  Personal  Property 120 

6.  Wife's  Paraphernalia — Gifts  from  Husband  to  Wife 123 

7.  Antenuptial  Settlements 126 

8.  Postnuptial   Settlements 13- 

9.  Liability  to  Each  Other  in  Tort 140 

Wife's  Contracts  for  Necessaries,  etc 142 

1.  \\'here  Husband  and  Wife  Are  Living  Together 142 

2.  Where  Husband  and  Wife  Are  Living  Apart 147 

3.  Where  Credit  Was  Given  to  Wife  Personally 160 

Divorce 165 

1.  Grounds  for  Divorce — Legislative  Power  Over  in  General.  .  165 

2.  Cruelty 166 

3.  Desertion    i/l 

4.  Recrimination    1/5 

5.  Conflict  of  Laws — Foreign  Divorces 17S 

II.  Parent  and  Child t87 

1.  Support  of  Child 187 

2.  Emancipation I94 

V 


TABLE  OF  CASES. 


Page 

Atlantic  City  Railroad  Co.  v.  Goodin 62 

Baker  v.  Barney 159 

Bandfield    v.    Bandfield 140 

Barnett  v.   Kimmell 46 

Beecher  v.  Wilson 13; 

Bell  V.  Bell 180 

Canale  v.  People 99 

Commonwealth   v.   Graham 80 

Corcoran  v.   Corcoran 1 10 

Cowell  V.  Phillips 155 

Cunningham  v.  Reardon 153 

Dempster  Mill  Mfg.  Co.  v.  Bundy 114 

De  Vry  v.  De  Vr>- 174 

Eichhoff  V.  Eichhoff 1 1 

Elzas  V.  Elzas 38 

Farrow  v.   Farrow 123 

Feiner  v.   Boynton 163 

Franklin  v.  Franklin,  154  Mass.  515 48 

Franklin  v.  Franklin,  190  Mass.  349 171 

Gafford  v.  Dunham 162 

Gould  V.  Gould 2 

Griffin  V.  Grffin 24 

Grimm,  Estate  of 44 

Hall  V.  Hall 120 

Harmon  v.  Old  Colony  Railroad  Co 117 

Hantz  V.  Sealy 45 

Hawkins  v.  Hawkins 56 

Heymann  v.   He>Tnann 35 

Hickman  v.   Hickman 165 

Hulett  V.  Carey 32 

Humber  v.  Humber 166 

Hutchinson  v.  Hutchinson 40 

Jackson  v.  Jackson 70 

Johnson  v.  Johnson 83 

Kimball  v.  Keyes 158 

Kirk  V.  Chinstrand 151 

vii 


Landes  v.  Landes 126 

Lanham  v.  Lanham 95 

Laverj-  v.  Hutchinson 4- 

Lee  V.  Savannah  Guano  Co i^- 

Levy  V.  Downing °^ 

Lewis  V.  Lewis 1° 

Loker  v.  Gerald ^/^ 

Lyon  V.  Lyon 28 

Mitchell  V.  Treanor 160 

Montague  v.  Benedict ^42 

Xorcross  v.  Norcross loi 

Parton  v.  Hervey 49 

Pease  v.  Pease I75 

Peck  V.  Peck i 

Phillips  V.  Madrid 20 

Poole  V.  People 61 

Porter  v.  Powell 188 

Prewitt  V.  Wilson i^9 

Pr ine  v.  Prine 16 

Quealy  v.  Waldron 23 

Rader  v.  Rader 170 

Ryan  v.  Dockery 109 

Schuchart  v.  Schuchart 58 

Shoro  V.  Shoro 26 

Sibley  v.  Gilmer I47 

State  V.  Bell 75 

State  V.  Cooper 104 

State  V.  Bittick 52 

State  V.  Fenn 91 

State  V.  Lowell 9 

State  V.  Kennedy 85 

State  V.  Ross 76 

State  V.   Shattuck 86 

Steinfield  v.  Girrard 156 

Stewart,  In  re 107 

Sutton  V.  Warren 65 

Thompson  v.  Thompson,  114  Mass.  356 64 

Thompson  v.  Thompson,  226  U.  S.  551 183 

United  States  v.  Rodgers li 

Van  Valkinburgh  v.  Watson 187 

Vusler  V.  Cox 153 

Wanamaker  v.  Weaver 143 

Waughop   V.   Waughop 13 

Whittington   v.    McCaskill 67 

Williams   v.    Harris I32 

Williams  v.  Herrick 102 

viii 


I.    HUSBAND  AND  WIFE. 

MARRIAGE. 

I.    What  Constitutes  Marriage. 

PECK  V.  PECK. 

155  Mass.  479,  30  X.  E.  74.    (1892.) 

Suit  for  divorce  by  William  F.  Peck  against  Sarah  G.  Peck. 
Bill  dismissed  on  the  ground  that  there  was  no  valid  marriage. 
Affirmed. 

LATHROP,  J. :  This  is  a  libel  for  divorce  on  the  ground  of 
desertion,  filed  February  2,  1891.  The  justice  of  the  superior 
court  who  heard  the  case  found  that  no  valid  marriage  was 
proved,  and  ordered  the  libel  to  be  dismissed.  The  case  comes 
before  us  on  a  report  of  the  evidence,  from  which  it  appears 
tliat  on  October  5,  1877,  the  parties,  having  for  three  years  be- 
fore had  their  domicile  in  the  state  of  California,  executed  tlie 
following  contract  at  Portland,  Ore.,  which  was  witnessed  by 
two  persons :  "We,  the  undersigned,  hereby  enter  into  a  co- 
partnership on  the  basis  of  the  true  marriage  relation.  Recog- 
nizing love  as  the  only  law  which  should  govern  the  sexual 
relationship,  we  agree  to  continue  this  copartnership  so  long  as 
mutual  affection  shall  exist,  and  to  dissolve  it  when  the  union 
becomes  disagreeable  or  undesirable  to  either  part}^  We  also 
agree  that  all  property  that  shall  be  acquired  by  mutual  effort 
shall  be  equallv  divided  on  the  dissolution  of  said  copartnership. 
Should  any  children  result  from  this  union,  we  pledge  ourselves 
to  be  mutually  held  and  bound  to  provide  them  support,  whether 
the  union  continues  or  is  dissolved." 

It  is  further  found  tliat  the  parties  thereafterwards  lived 
together  under  said  contract,  and  held  themselves  out  to  be  hus- 
band and  wife,  in  tlie  state  of  Oregon,  for  about  three  months ; 
in  California  for  about  one  year;  in  Iowa,  for  about  three  and 
a  half  years ;  in  New  York,  for  about  three  months,  and  at  Bos- 
ton, in'this  commonwealth,  from  1886  to  the  time  of  the  alleged 
desertion,  on  or  about  January  15,  1888,  and  that  both  said  par- 

AS.  DoM.  Rel.  I 


2  MARRIAGE. 

ties  have  resided  in  this  state  from  said  alleged  desertion  to  the 
day  of  the  filing  of  tlie  libel ;  that  the  libelee  was  a  spiritualist 
public  speaker,  who,  on  account  of  peculiar  religious  and  busi- 
ness motives,  and  by  consent  of  the  libelant,  retained  the  name 
of  IMrs.  H.  S.  Lake,  the  name  of  her  former  husband,  who  died 
before  the  year  1877,  and  there  never  was  any  ceremony,  act, 
or  solemnization  of  marriage  between  them,  save  as  herein 
stated.  The  report  also  sets  out  the  laws  relating  to  marriage 
of  the  states  of  California,  Oregon,  Iowa  and  New  York,  but 
does  not  refer  us  to  any  decisions  of  the  courts  of  those  states 
construing  the  laws  set  forth. 

There  is  nothing  in  the  law  of  California,  where  the  parties 
had  their  domicile,  or  in  the  law  of  Oregon,  where  the  contract 
was  signed,  which  recognizes  an  agreement  to  live  together, 
"so  long  as  mutual  affection  shall  exist,"  as  a  marriage  con- 
tract. We  have,  therefore,  no  occasion  to  consider  whether,  by 
the  law  of  either  of  those  states,  there  can  be  a  marriage  by  a 
mere  contract,  without  a  ceremony.  There  being  no  marriage, 
their  subsequent  cohabitation  points  only  to  the  illegal  contract 
under  which  it  began.  There  is  no  room  for  any  presumptions. 
We  find  nothing  in  the  laws  of  the  states  where  they  lived 
together  which  recognizes  such  a  cohabitation  as  a  marriage. 
Randlett  v.  Rice,  141  I^Iass.  385,  394,  6  N.  E.  238 ;  Norcross  v. 
Xorcross,  155  Mass.  425,  29  N.  E.  506.  Decree  affirmed. 


2.    Capacity  of  Parties. 

a.  Consanguinity. 

Sutton  V.  Warren,  10  Mete.  (Mass.)  451,  post,  p.  65. 
United  States  v.  Rodgers,  109  Fed.  886,  post,  p.  73. 
Johnson  v.  Johnson,  57  Wash.  89,  106  Pac.  500,  post, 

P-83. 

b.  Physical  Capacity. 

GOULD  V.  GOULD. 

78  Conn.  242,  61  Atl.  604,  2  L.  R.  A.  (N.  S.)  531.   (1905) 

Action  by  Marion  D.  Gould  against  Roy  S.  Gould  for  a 
divorce  or  a  decree  of  nullity  on  the  ground  that  the  defendant 
had  fraudulently  concealed  from  her  at  the  time  of  their  mar- 
riage that  he  was  an  epileptic.  The  action  was  brought  under  a 
Connecticut  statute.  The  action  was  dismissed  on  default  of 
defendant.    Judgment  reversed  and  a  new  trial  ordered. 


GOULD  V.  GOULD.  3 

BALDWIN,  J.:  In  1895  a  statute  was  enacted  of  which 
the  first  section  reads  as  follows:  "No  man  or  woman,  either 
of  whom  is  epileptic,  imbecile,  or  feeble-minded,  shall  inter- 
marry, or  live  together  as  husband  and  wife,  when  the  woman 
is  under  forty-five  years  of  age.  Any  person  violating  or  at- 
tempting to  violate  any  of  tlie  provisions  of  this  section  shall 
be  imprisoned  in  the  state  prison  not  less  than  three  years." 
Pub.  Acts  1895,  p.  667,  ch.  325.  Cf.  Gen.  St.  1902,  §  1354.  In 
1899  the  plaintiff,at  the  age  of  2.2,  married  the  defendant,  who 
was  an  epileptic.  In  1903  a  child  was  born,  issue  of  the  mar- 
riage, and  soon  afterwards  the  plaintifif,  then  first  learning  of 
the  statute  mentioned,  left  the  defendant,  and  brought  this 
suit  for  a  divorce  or  a  decree  that  the  marriage  was  null  and 
void.  In  her  complaint  she  alleged  that  the  defendant,  though 
an  epileptic,  falsely  and  fraudulently  concealed  this  fact  from 
her,  and  represented  that  he  had  never  had  epilepsy ;  in  conse- 
quence of  which  representations  she,  believing  them  to  be  true, 
had  been  induced  to  enter  into  the  contract  of  marriage.  On  the 
trial  in  this  court,  no  argument  was  submitted  in  behalf  of  the 
defendant.  The  proper  disposition  of  a  cause  of  this  character 
is,  however,  a  matter  of  public  concern,  in  the  interest  of 
society,  and  we  feel  bound  to  examine  such  considerations  in 
support  of  the  judgment  appealed  from  as  he  might  have  urged, 
had  he  been  represented  by  counsel.  Allen  v.  Allen,  73  Conn. 
54,  55,  46  Atl.  242,  49  L.  R.  A.  142,  84  Am.  St.  Rep.  135. 

Was  the  statute  a  valid  act  of  legislation?  It  forbade  the 
marriage  of  certain  classes  of  persons  under  any  circumstances. 
One  of  tliese,  only,  it  is  now  necessary  to  consider — tliat  of 
epileptics.  The  provisions  of  the  act  of  1895  were  separable 
with  respect  to  the  different  classes  of  persons  with  whom  it 
deals,  and,  so  far  as  this  action  is  concerned,  it  is  enough  if  it 
can  be  supported  as  to  marriages  contracted  after  its  enactment 
by  those  in  the  condition  ofthe  defendant.  Pub.  Acts  1895,  p. 
667,  ch.  325.  The  Constitution  of  this  state  (preamble  and  arti- 
cle I,  §  i)  guarantees  to  its  people  equality  under  the  law  in 
the  rights  to  "life,  liberty,  and  the  pursuits  of  happiness."  State 
V.  Conlon,  65  Conn.  478,  489-491,  33  Atl.  519,  31  L.  R.  A.  55, 
48  Am.  St.  Rep.  227.  One  of  these  is  the  right  to  contract  mar- 
riage, but  it  is  a  right  tliat  can  only  be  exercised  under  such 
reasonable  conditions  as  the  legislature  may  see  lit  to  impose.  It 
is  not  possessed  by  those  below  a  certain  age.  It  is  denied  to 
those  who  stand  within  certain  degrees  of  kinship.  The  mode 
of  celebrating  it  is  prescribed  in  strict  and  exclusive  terms 
Gen.  Stat.  1902,  §  4538. 


4  MARRIAGE. 

The  universal  prohibition  in  all  civilized  countries  of  mar- 
riages between  near  kindred  proceeds  in  part  from  the  estab- 
lished fact  that  the  issue  of  such  marriages  are  often,  tliough 
by  no  means  always,  of  an  inferior  type  of  physical  or  mental 
development.   That  epilepsy  is  a  disease  of  a  peculiarly  serious 
and  revolting  character,  tending  to  weaken  mental  force,  and 
often  descending  from  parent  to  child,  or  entailing  upon  tlie 
offspring  of  the  sufferer  some  other  grave  form  of  nervous 
malady,  is  a  matter  of  common  knowledge,  of  which  courts  will 
take  judicial  notice.   State  v.  ]\Iain,  69  Conn.  123,  135,  37  Atl. 
80,  36  L.  R.  A.  623,  61  Am.  St.  Rep.  30.  One  mode  of  guarding 
against  the  perpetuation  of  epilepsy  obviously  is  to  forbid  sex- 
ual intercourse  with  those  afflicted  by  it,  and  to  preclude  such 
opportunities  for  sexual  intercourse  as  marriage  furnishes.  To 
impose  such  a  restriction  upon  the  right  to  contract  marriage, 
if  not  intrinsically  unreasonable,  is  no  invasion  of  the  equality 
of  all  men  before  the  law,  if  it  applies  equally  to  all,  under  the 
same  circumstances,  who  belong  to  a  certain  class  of  persons, 
which  class  can  reasonably  be  regarded  as  one  requiring  spe- 
cial legislation  either  for  their  protection  or  for  the  protection 
from  them  of  the  community  at  large.  It  can  not  be  pronounced 
by  the  judiciary  to  be  intrinsically  unreasonable  if  it  should  be 
regarded  as  a  determination  by  tlie  general  assembly  that  a  law 
of  this  kind  is  necessary  for  the  preservation  of  public  health, 
and  if  there  are  substantial  grounds  for  believing  that  such 
determination  is  supported  by  the  facts  upon  which  it  is  appar- 
ent that  it  was  based.  Holden  v.  Hardy,  169  U.  S.  366,  398,  18 
Sup.  Ct.  383,  42  L.  ed.  780;  Bissell  v.  Davidson,  65  Conn.  183, 
192,  32  Atl.  348,  29  L.  R.  A.  251.   There  can  be  no  doubt  as 
to  the  opinion  of  the  general  assembly,  nor  as  to  its  resting  on 
substantial  foundations.    The  class  of  persons  to  whom  the 
statute  applies  is  not  one  arbitrarily  formed  to  suit  its  purpose. 
It  is  certain  and  definite.   It  is  a  class  capable  of  endangering 
the  health  of  families  and  adding  greatly  to  the  sum  of  human 
suffering.    Between  the  members  of  this  class  there  is  no  dis- 
crimination, and  the  prohibitions  of  the  statute  cease  to  operate 
when,  by  the  attainment  of  a  certain  age  by  one  of  those  whom 
it  affects,  the  occasion  for  the  restriction  is  deemed  to  become 
less  imperative.  While  Connecticut  w^as  a  pioneer  in  this  coun- 
try with  respect  to  legislation  of  this  character,  it  no  longer 
stands  alone.    jMichigan,  Minnesota,  Kansas  and  Ohio  have, 
since  1895,  acted  in  the  same  direction.    2  Howard  on  Matri- 
monial Institutions,  400,  479,  480;  Sess.  Laws  Ohio,  1904,  p. 
83.  Laws  of  tliis  kind  may  be  regarded  as  an  expression  of  the 
conviction  of  modern  society  that  disease  is  largely  preventable 


GOULD  V.   GOULD.  5 

by  proper  precautions,  and  that  it  is  not  unjust  in  certain  cases 
to  require  the  observation  of  these,  even  at  the  cost  of  narrow- 
ing what  in  former  clays  was  regarded  as  the  proper  domain 
of  individual  right.  It  follows  that  the  statute  in  ([uestion  was 
not  invalid,  as  respects  marriages  contracted  by  epileptics,  after 
it  took  effect. 

The  next  question  which  present  itself  is  whether  the  mar- 
riage of  the  iilaintiff  was  void.  A  contract  for  any  matter  or 
thing  against  the  prohibition  of  a  statute  is  treated  as  void, 
although  the  statute  does  not  declare  it  to  be  so,  if  such  con- 
tract be  relied  on  in  any  action  as  the  foundation  of  the 
right  of  recovery.  Preston  v.  Bacon,  4  Conn.  471,  480;  Finn 
V.  Donahue,  35  Conn.  216.  But  a  contract  of  marriage  is 
sui  generis.  It  is  simply  introductory  to  the  creation  of  a 
status,  and  what  that  status  is  the  law  determines.  A  con- 
tract executed  in  contravention  of  law  may  yet  establish  a 
status  which  the  law  will  recognize,  and,  if  one  of  the  contract- 
ing parties  w^ere  innocent  of  any  intention  to  violate  the  law, 
may  recognize  as  carrying  with  it  in  his  favor  the  same  rights 
and  duties  as  if  the  contract  had  been  entirely  unexceptionable. 
In  re  Grimley,  137  U.  S.  147,  152,  153,  11  Sup.  Ct.  54,  34  L. 
ed.  636. 

The  common  law  of  England  followed  the  canon  law  in  re- 
garding a  marriage  once  lawfully  entered  into  as  dissoluble  only 
by  an  extraordinary  act  of  the  sovereign  power.  It  followed  the 
canon  law  also  in  holding  marriages  entered  into  by  those  under 
canonical  disabilities  to  be  voidable  by  the  si^iritual  courts,  and 
held  them  to  be  voidable  only.  They  were  therefore  esteemed 
valid  for  all  civil  purposes,  unless  a  sentence  of  nullity  were 
pronounced  during  the  life  of  both  parties.  Glanville,  book  3, 
ch.  17;  Kenn's  Case,  7  Rep.  42.  On  the  other  hand,  there  were 
certain  fundamental  disabilities,  depending  not  on  the  canon 
law,  but  on  universal  or  municipal  law,  which  might  render  a 
marriage  void  ab  initio;  such  as  a  prior  marriage  of  either 
party,  a  want  of  age  sufficient  to  give  capacity  to  consent,  and 
a  want  at  any  age  of  the  necessary  mental  capacity,  i  Black- 
stone's  Comm.  434-439. 

In  the  revision  of  1702  the  general  assembly  of  this  state 
prohibited  marriages  between  those  within  certain  degrees  of 
kinship,  and  also  the  celebration  of  marriages  without  the  pub- 
lication of  banns,  and,  in  case  of  minors,  without  the  consent 
of  the  parent  or  guardian,  or  before  one  not  having  due  author- 
ity. In  case  of  a  violation  of  the  prohibition  first  mentioned 
the  marriage  was  expressly  declared  to  be  null  and  void.  For 
a  violation  of  the  others  a  pecuniary  forfeiture  was  prescribed. 


6  MARRIAGE. 

Rev.  1702,  p.  74.  In  1 71 7  bigamous  marriages  were  declared 
to  be  null  and  void,  and  those  between  parties  under  tlie  age 
of  consent.  Questions  soon  arose  as  to  whether  the  marriages 
celebrated  in  contravention  of  the  prohibition  of  the  statute 
of  1702  could  be  treated  as  valid.  That  they  could  be  if  the  only 
objection  was  the  want  of  the  consent  of  parent  or  guardian, 
or  a  failure  to  publish  the  banns,  was  generally  conceded ;  but 
it  was  seriously  questioned  if  one  could  be  upheld  which  was 
celebrated  before  a  person  not  duly  authorized.  To  settle  this 
point  a  provision  was  introduced  into  the  revision  of  1821,  fol- 
lowing in  part  Lord  Hardwick's  act  of  1753,  expressly  declar- 
ing such  a  marriage  to  be  void.  Rev.  1821,  pp.  316,  318,  note; 
Gen.  St.  1902,  §  4538.  The  act  of  1895  did  not  (and  Gen.  St. 
1902,  §  1354,  does  not)  make  such  a  declaration  with  reference 
to  tlie  marriage  of  an  epileptic.  It  contented  itself  with  impos- 
ing criminal  penalties.  It  inferentially  sanctioned,  in  case  of 
such  a  marriage,  the  living  together  of  the  parties  "as  husband 
and  wife"  after  the  latter  arrived  at  the  age  of  45.  The  omis- 
sion to  declare  the  marriage  to  be  void  is  made  doubly  signifi- 
cant by  the  fact  that  such  a  declaration  is  found  embodied  in 
two  of  the  other  statutory  prohibitions  (Gen.  St  1902,  §§  4534, 
4538),  and  not  in  a  third  (§  4535).  It  may  wellbe  that  the 
general  assembly  were  no  more  inclined  to  bastardize  the  issue 
of  the  marriage  of  an  epileptic  than  that  of  a  minor  married 
without  parental  consent.  We  therefore  conclude  that  the  legis- 
lature intended  to  leave  the  effect  of  a  marriage  contracted  in 
violation  of  the  act  of  1895  to  be  determined  by  the  general 
principles  of  the  common  law.  These  lead  to  the  conclusion 
that  it  is  dissoluble,  ratlier  than  void. 

The  common  law,  however,  held  that,  when  a  marriage  was 
avoided  on  account  of  canonical  disabilities,  it  must  be  by  a 
decree  of  nulity  which  pronounced  it  void  ab  initio.  This  doc- 
trine rested  on  the  theory  of  the  Roman  Catholic  Church  that, 
if  a  marriage  were  once  contracted  under  its  sanction,  it  ac- 
cjuired  a  sacramental  character,  and  was  indissoluble  by  hurtian 
authority.  A  spiritual  court  could  adjudge  that  two  parties, 
though  apparently  married,  never  really  were.  No  court  could 
dissolve  what  was  in  fact  a  marriage  for  any  cause.  ^  No  such 
theory  was  ever  recognized  in  the  laws  of  Connecticut.  Di- 
vorces have  been  freely  granted  from  the  first,  and  since  1667 
one  of  the  causes  has  been  "fraudulent  contract."  This  was 
judicially  defined  more  than  a  century  ago  as  a  fraud  entering 
into  the  substance  of  the  marriage  relation,  preceding  it,  "and 
such  a  one  as  rendered  the  marriage  unlawful  ab  initio,  as  con- 
sanguinity, corporal  imbecility,  and  the  like ;  in  which  case  the 


GOULD  V.   GOULD.  7 

law  looks  upon  the  marriage  as  null  and  void,  being  contracted 
in  fraudem  Icgis,  and  decrees  a  separation  a  vinculo  matri- 
monii." Benton  v.  Benton,  i  Day,  iii,  114.  The  words  quoted 
were  taken  from  3  Blackstone's  Commentaries,  94,  and  accu- 
rately describe  the  original  theory,  as  to  divorce,  of  English 
law.  That  theory,  however,  is  hardly  consonant  with  the  di- 
vorce statutes  of  this  state.  In  the  form  in  which  they  were 
incorporated  in  the  Revision  of  1702  (page  28)  these  provide 
"that  no  bill  of  divorce  shall  be  granted,  to  any  man  or  woman 
lawfully  married,  but  in  case  of  adultery,  or  fraudulent  con- 
tract, or  wilful  desertion  for  three  years,  with  total  neglect  of 
duty:  or  in  case  of  seven  3-ears'  absence  of  one  party,  and  not 
heard  of,  after  due  enquiry  is  made,  and  the  matter  certified  to 
the  court  of  assistants ;  in  which  case  the  other  party  may  be 
deemed  and  accounted  single,  and  unmarried :  and  in  that  case, 
and  in  all  other  cases,  aforementioned,  a  bill  of  divorce  may  be 
granted  by  the  court  of  assistants,  to  tlie  aggrieved  party,  who 
may  then  lawfully  marry,  or  be  married  again."  In  Gen.  St. 
1902,  §  4551,  fraudulent  contract  is  described  as  an  "offense," 
and  made  a  cause  of  divorce;  other  provisions  being  made 
(§  4562)  for  pronouncing  a  marriage  void  by  a  decree  of 
nullity. 

That  the  statute  prior  to  our  decision  in  Benton  v.  Benton 
was  not  regarded  as  limiting  divorces  on  the  ground  of  fraud- 
ulent contract  to  cases  of  marriages  void  ab  initio  is  evidenced 
by  the  following  passages  in  the  first  general  commentary  on 
the  laws  of  Connecticut:  "The  reasons  of  divorce  by  statute 
are  such  as  arise  subsequent  to  the  marriage,  excepting  in  the 
case  of  fraudulent  contract.  The  issue,  however,  in  no  case 
will  be  bastardized  by  the  divorce,  because  the  marriage  is  legal 
and  valid  till  annulled ;  not  absolutely  void,  but  only  voidable. 
*  *  *  ]3y  ^iig  common  law  of  England,  corporal  imbecility, 
frigidity,  or  perpetual  impotency,  existing  prior  to  the  marriage, 
was  a  ground  of  divorce  from  the  bond  of  matrimony.  In  our 
statutes  nothing  is  mentioned  of  this  reason,  though  perhaps  it 
may  be  comprehended  under  the  idea  of  a  fraudulent  contract ; 
for  we  can  not  form  an  idea  of  a  greater  fraud  than  for  one 
person  to  marry  another  when  laboring  under  a  perpetual  inca- 
pacity to  perform  the  essential  duties  of  the  contract.  But  this 
point  remains  to  be  settled  in  the  future,  as  no  application  has 
ever  been  made  on  this  ground  to  the  superior  court."  i  Swift's 
System,  192,  193.  The  point  adjudged  in  Benton  v.  Benton  was 
that  it  was  no  cause  of  divorce  that  the  man  had  proposed  mar- 
riage professedly  for  love,  but  really  to  get  release  from  con- 
finement on  bastardy  process,  which  had  been  sued  out  by  the 


8  MARRIAGE. 

woman,  and  with  the  design  (afterwards  executed)  of  desert- 
ing her  forever  as  soon  as  the  marriage  was  performed.  That 
fraud  and  false  representations  of  such  a  kind  do  not  make  out 
a  case  of  fraudulent  contract  is  clear,  but  the  expressions  above 
quoted  from  our  opinion  were  unguarded  in  so  far  as  they  could 
be  understood  as  limiting  the  application  of  that  term  to  mar- 
riages of  such  a  kind  as  were  void  ab  initio.  If  by  the  common 
law  of  England  at  the  time  of  the  settlement  of  this  country 
fraudulent  contract  would  be  a  cause  of  nullity,  and  not  of 
divorce,  the  legislation  of  Connecticut  has  been  shaped  by  a 
different  policy,  and  leads  to  a  different  result.  Looking,  as 
our  fathers  did,  on  marriage  as  a  civil  institution,  it  Vv'as  not  to 
be  expected  that  they  would  follow  the  mother  country  in  ac- 
cepting a  doctrine  which,  in  placing  divorce  beyond  the  reach  of 
civil  government,  naturally  led  to  giving  the  widest  possible 
scope  to  decrees  of  nullity  obtained  in  the  ecclesiastical  tribun- 
als. American  legislators,  working  with  a  free  hand,  could  pay 
more  regard  to  the  interests  of  injured  parties  and  the  protec- 
tion of  the  issue  of  an  illegal  marriage  from  the  stain  of  illegit- 
imacy. 

The  memorandum  of  decision  filed  by  the  court  below  shows 
that  it  felt  bound  by  the  decision  in  Benton  v.  Benton  to  rule 
that  the  cause  of  divorce  claimed  by  the  plaintiff  did  not  come 
within  the  scope  of  the  term  "fraudulent  contract,"  because  it 
was  not  one  rendering  the  marriage  void  ab  initio.  This  ground 
is  untenable.  The  fraud  which  makes  the  contract  of  marriage 
fraudulent,  as  that  word  is  used  in  the  statute  of  divorce,  is  a 
fraud  in  law  and  upon  tlie  law.  Such  a  fraud  is  accomplished 
whenever  a  person  enters  into  that  contract  knowing  that  he  is 
incapable  of  sexual  intercourse,  and  yet,  in  order  to  induce  the 
marriage,  designedly  and  deceitfully  concealing  that  fact  from 
the  other  party,  who  is  ignorant  of  it,  and  has  no  reason  to 
suppose  it  to  exist.  Whether  such  incapacity  proceeds  from  a 
physical  or  a  merely  legal  cause  is  immaterial. 

The  prohibition  of  the  act  of  1895  fastened  upon  the  defend- 
ant an  incapacity,  which,  if  unknown  to  the  plaintiff",  and  by 
him  fraudulently  concealed  from  her  with  the  purpose  thereby 
to  induce  a  marriage,  made  his  contract  of  marriage,  in  the  eye 
of  the  law,  fraudulent.  Whether,  on  such  a  state  of  facts,  he 
could  ask  for  a  divorce,  or  would  be  precluded  from  thus  taking 
advantage  of  his  own  wrong,  we  have  no  occasion  to  determine. 
The  plaintiff"  could.  The  superior  court  has  power  to  pass  a 
decree  of  divorce  from  the  bonds  of  matrimony  in  favor  of  a 
party  to  a  marriage,  not  an  epileptic,  who  has  been  tricked  into 
it  by  the  other  party,  who  was  an  epileptic,  through  his  fraud 


STATE  V.  LOWELL,  9 

in  inducing  a  belief  tliat  he  was  legally  and  physically  compe- 
tent to  enter  into  the  marital  relation  and  fulfill  all  its  duties, 
when  he  knew  that  he  was  not.  Guilford  v.  Oxford,  9  Conn. 
321,  328;  Ferris  v.  Ferris,  8  Conn.  166. 

Whether  the  facts  found  by  the  court  were  sufficient  to  sup- 
port a  judgment  in  her  favor  we  do  not  think  it  necessary  or 
proper  to  determine  upon  the  present  record.  The  finding  was 
prepared  under  a  misconception  of  the  law,  which  naturally 
made  it  less  full  and  precise  on  certain  points  than  it  would 
otherwise  have  been,  and  the  case  is  of  such  a  character  that  a 
rehearing  will  best  serve  the  interests  of  justice. 

There  is  error,  and  a  new  trial  is  ordered. 


c.    Age. 

Commonwealth  v.  Graham,  157  ]\Iass.  y^,,  31  N.  E.  706, 

16  L.  R.  A.  578,  34  Am.  St.  255,  post,  p.  80. 
Canale  v.  People,  177  111.  219,  52  N.  E.  310,  post,  p.  99. 
Parton  v.  Hervey,  i  Gray  (Mass.)  119,  post,  p.  49. 

STATE  V.  LOWELL. 

78  I\Iinn.  166,  80  N.  W.  877,  46  L.  R.  A.  440,  79  Am.  St.  358. 

(1899.) 

Habeas  corpus  proceedings  on  tlie  relation  of  Alexander  W. 
Scott  in  behalf  of  his  wife,  Sadie  Scott,  against  her  fatlier, 
Fred  L.  Lowell,  and  another.  Judgment  for  respondents.  On 
new  trial  judgment  for  relator. 

START,  C.  J. :  On  October  18,  1899,  the  relator,  Alexander 
W.  Scott,  a  man  ^2  years  of  age,  and  Sadie  Lowell,  a  girl  then 
only  13  years  and  ii  months  old,  tlie  daughter  of  the  respond- 
ent Fred  L.  Lowell,  were  married,  without  the  consent  of  her 
parents,  in  due  form,  by  an  ordained  minister  of  the  gospel, 
upon  the  presentation  of  a  license  in  due  form,  issued  by  tlie 
clerk  of  the  proper  county.  Cohabitation  as  husband  and  wife 
followed  the  marriage,  but  on  the  next  day  thereafter  the  father 
went  to  the  house  of  the  husband,  and  forcibly  took  his  daugh- 
ter away,  against  her  will  and  wishes,  and  detained  her.  There- 
upon a  writ  of  habeas  corpus  in  her  behalf  was  sued  out  of  the 
district  court  for  the  county  of  Hennepin,  on  the  relation  of 
her  husband. 

Upon  a  hearing  on  the  return  of  the  writ  the  court  discharged 
the  writ,  and  remanded  tlie  wife  to  the  custody  and  control  of 


10  MARRIAGE. 

her  father,  from  which  order  the  relator  appealed  to  this  court. 
The  cause  was  here  heard  de  novo,  pursuant  to  Laws  1895, 
ch.327.  A  referee  was  appointed  to  take  and  report  the  evidence, 
who  did  so.  The  evidence  establishes  the  facts  we  have  already- 
stated,  and,  further,  that  the  husband  is  an  industrious  man, 
who  has  a  home,  and  he  is  able  to  support  a  wife  and  family, 
and  that  his  wife  is  ready  and  anxious  to  return  to  and  live  with 
him  as  her  husband,  if  relieved  from  the  restraint  of  her  fatlier. 
The  wisdom  of  this  marriage,  or  the  propriety  of  the  relator's 
conduct  in  inducing  this  young  girl  to  marry  him,  are  questions 
which  it  is  not  our  province  to  discuss  or  characterize.  iMoral- 
ize  as  we  may,  the  fact  remains  that  the  parties  were  married, 
and  the  marriage  has  been  consummated;  hence  we  are  now 
simply  to  inquire  dispassionately  as  to  tlie  legal  status  of  the 
parties.  The  question  presented  by  the  record  is,  was  this  mar- 
riage void  or  voidable,  and,  if  the  latter,  did  it  emancipate  the 
wife  from  the  custody  of  her  father? 

'  ^  The  common  law  established  the  age  of  consent  to  the  mar- 
riage contract  at  14  years  for  males  and  12  years  for  females, 
but  our  statute  (Gert.  St.  1894,  §  4769)  provides  "that  every 
male  person  who  has  attained  the  full  age  of  eighteen  years  and 
every  female  who  has  attained  the  full  age  of  fifteen  years,  is 
capable  in  law  of  contracting  marriage  if  otherwise  compe- 
tent." But  the  statute  does  not  declare  that,  if  a  marriage  is 
entered  into  when  one  or  both  of  tlie  parties  are  under  the  age 
limit  prescribed,  the  marriage  shall  be  void.  It  does,  however, 
impose  restrictions  and  penalties  upon  public  officers  and  cler- 
gymen,  for  the  purpose  of  preventing,  so  far  as  possible,  such 
marriages  being  solemnized ;  but  the  statute  has,  for  wise  rea- 
sons, stopped  short  of  declaring  such  marriages  void.  Such 
being  the  case,  we  hold,  upon  principle  and  autliority,  that  the 
m.arriage  of  a  person  who  has  not  reached  the  age  of  compe- 
tency as  established  by  the  statute,  but  is  competent  by  the  com- 
mon law,  is  not  void,  but  voidable  only  by  a  judicial  decree  of 
nullity  at  the  election  of  the  party  under  the  age  of  legal  con- 
sent, to  be  exercised  at  any  time  before  reaching  such  age,  or 
afterwards  if  the  parties  have  not  voluntarily  cohabitated  as 
husband  and  wife  after  reaching  the  age  of  consent.  Gen.  St. 
1894,  §§  4769,  4786,  4788,  4789;  Schouler,  Dom,  Rel.  §  20; 
14  Am.  &  Eng.  Enc.  Law,  488;  i  Bish.  Alar.  &  DIv.  §  145; 
Beggs  V.  State,  55  Ala.  108;  Eliot  v.  Eliot,  yy  Wis.  634,  46 
N.  W.  806 ;  State  v.  Cone,  86  Wis.  498,  57  N.  W.  50.  The  mar- 
riage being  voidable,  it  must  be  treated  as  valid  for  all  civil 
purposes  until  annulled  by  judicial  decree.  Schouler,  Dom. 
Rel.  §  14. 


EICHHOFF  V.  EICHHOFF.  H 

Now,  the  question  of  the  right  of  the  respondent,  as  fathci 
of  the  relator's  wife,  to  restrain  her  from  going  to  her  husband 
must  be  determined  upon  the  basis  that  the  marriage  is  vaUd 
The  marriage  of  a  minor,  even  without  the  parent's  consent 
emancipates  tlie  child  from  the  custody  of  the  parent ;  for  the 
marriage  creates  relations  inconsistent  with  subjection  to  tlit 
control  of  the  parent.    Parental  rights  must  yield  to  the  neces- 
sities of  the  new  status  of  the  child,    i  Bish.  Mar.  &  Div.  §  275 
Schouler,  Dom.  Rel.  §  267.  The  correctness  of  this  propositior 
as  a  general  rule  is  admitted,  but  it  is  claimed  on  behalf  of  the 
father  that  it  does  not  api)ly  to  this  case,  because  tlie  husband 
can  not  enforce  his  marital  rights  without  the  consent  of  the 
wife,  and  that  she  can  not,  by  giving  her  consent  to  a  voidable 
marriage,  free  herself  from  parental  control,  and,  further,  that 
she  can  not  do  so  until  she  reaches  the  age  when  she  can  legally 
affirm  the  marriage ;  that  to  hold  otherwise  would  enable  a  girl 
under  12  and  over  7  years  of  age  to  emancipate  herself  by  con- 
senting to  a  voidable  marriage.   This  course  of  reasoning  ig- 
nores the  fact  that  the  marriage,  until  set  aside,  must  be,  for 
all  civil  purposes,  treated  as  valid,  and  that  it  is  her  new  and 
inconsistent  status  as  a  wife  which  emancipates  her  from  the 
control  of  her  father.  A  wife— and  this  girl  must  be  regarded 
as  such  for  the  purposes  of  this  case — certainly  has  the  capac- 
ity^ to  consent  to  live  with  her  husband.   Whether  the  marriage 
of  a  child  under  12  years  of  age  and  over  7  years  would  eman- 
cipate her,  we  need  not  determine.     It  would  seem,  however, 
that  the  operation  of  natural  laws  would  incapacitate  her  in 
fact  from  assuming  the  new  and  inconsistent  relations  which 
emancipate  a  minor  from  parental  control. 

Our  conclusion  is  that  the  respondent  is  not  legally  entitled 
to  detain  his  daughter,  if  she  elects  to  return  and  live  with  her 
husband.  Therefore  it  is  ordered  that  Sadie  Scott,  the  wife  of 
the  relator,  Alex.  W.  Scott,  be  freed  from  the  restraint  of  her 
fatlier,  the  respondent  Fred  L.  Lowell,  and  that  he  surrender 
her  to  the  relator,  if  she  elects  to  live  with  him  as  her  husband. 

Let  judgment  be  so  entered. 

d.    Mental  Capacity. 

EICHHOFF  V.  EICHHOFF. 

loi  Cal.  600,  36  Pac.  II.    (1894.) 

Appeal  by  George  Eichhoff  from  an  order  granting  letters  of 
administration  to  IMagdalena  Eichhoff  upon  the  estate  of  Gus- 
tave  Eichhoff,  deceased.    Order  affirmed. 


12  MARRIAGE. 

HARRISON,,  J.:  Upon  the  death  of  Gustave  Eichhoff, 
Alagdalena  Eichhoff,  claiming  to  be  his  widow,  appHed  for  let- 
ters of  administration  upon  his  estate.  Her  application  was 
resisted  by  the  appellant,  a  son  of  the  deceased,  who  also  made 
application  that  letters  of  administration  be  issued  to  himself. 
The  court  granted  tlie  application  of  Magdalena,  and  denied 
that  of  the  appellant.  The  deceased  and  Magdalena  were  mar- 
ried May  25,  1882,  and  from  that  time  lived  together  as  hus- 
band and  wife  until  his  death  in  February,  1893.  In  1863  he 
had  been  married  to  Milceon  Winike,  and  they  had  lived  in 
Stockton  as  husband  and  wife  until  1876,  during  which  time  the 
appellant  and  five  other  children  were  born  to  them.  In  1876 
the  wife  was  committed  to  the  insane  asylum  at  Stockton,  and 
she  is  still  living  as  an  inmate  of  the  insane  asylum.  In  April, 
1882,  the  deceased  brought  an  action  against  her  in  the  Superior 
Court  of  Marin  County  to  procure  a  decree  annulling  his  mar- 
riage with  her  upon  the  ground  of  fraud  on  her  part  in  conceal- 
ing the  fact  that  she  was  insane  at  the  time  of  their  marriage, 
and  a  decree  to  that  effect  was  rendered  by  tliat  court  in  July, 
1882. 

Upon  the  present  application  for  letters  of  administration 
the  judgment  roll  in  that  action  was  introduced  in  evidence,  and 
it  is  claimed  by  respondent  that  by  virture  of  this  judgment 
her  marriage  with  the  deceased  constituted  her  his  lawful  wife, 
while  the  appellant  maintains  that  it  fails  to  show  that  the  mar- 
riage between  his  mother  and  the  deceased  was  ever  annulled. 
The  judgment  roll  shows  that  tlie  complaint  was  filed  April  21, 
1882;  that  on  the  same  day  a  summons  was  issued  thereon, 
and  that  it  was  returned  April  25,  1882,  without  any  proof  of 
service;  that  on  the  17th  of  July,  1882,  after  hearing  evidence 
upon  the  averments  of  the  complaint,  the  court  rendered  its 
judgment  "that  the  marriage  between  the  plaintiff,  Gustave 
Eichhoff,  and  the  defendant,  Milceon  W.  Eichhoff,  be,  and  the 
same  is  hereby,  annulled,  and  said  parties  are,  and  each  of  them 
is,  restored  to  the  status  and  position  of  unmarried  persons." 

[The  principal  ground  of  appellant's  contention  was  that  it 
did  not  affirmatively  appear  that  the  defendant  in  the  annul- 
ment proceedings  had  been  served  with  process  or  had  appeared 
in  the  suit.  The  court  held,  however,  that  it  would  be  presumed 
in  favor  of  the  judgment  of  nullity  that  there  was  proper  serv- 
ice although  not  shown  in  the  record.  The  opinion  thus  con- 
tinues :]  This  presumption  was  sufficient  to  sustain  the  finding 
of  the  court  in  the  matter  appealed  from  herein,  that  the  re- 
spondent was  the  wife  of  the  deceased  at  the  time  of  his  death. 
The  fact  that  the  judgment  annulling  the  marriage  between  the 


WAUGIIOP  V.   VVAUGIIOP.  I3 

deceased  and  his  wife  was  not  entered  until  July  did  not  inval- 
idate his  marria.i^e  with  tlie  respondent  in  the  previous  ^lay. 
The  decree  annulHng  the  marriage  was  a  judicial  determination 
of  the  status  of  the  i)arties  thereto.  It  did  not  render  the  mar- 
riage void,  but  simply  declared  that  it  had  been  void ;  and  the 
marriage  thereby  annulled  is  to  be  regarded  as  never  having, 
in  fact,  existed,  except  in  so  far  as  was  necessary  to  protect  the 
civil  rights  that  others  may  have  acquired  in  reliance  upon  its 
apparent  validity.  Stew.  Mar.  &  Div.  §  141 ;  2  Bish.  Mar.  Div. 
&  Sep.  §  1596  et  seq. ;  Perry  v.  Perry,  2  Paige  (N.  Y.),  501. 
The  order  is  affirmed. 


WAUGHOP  V.  WAUGHOP. 
(Wash.)    i43Pac.  444.   (1914-) 

Action  by  Philip  R.  Waughop  against  Nellie  Waughop  for 
decree  annulling  their  marriage.  Judgment  for  plaintiff. 
Affirmed. 

GOSE,  J. :  This  is  an  action  to  annul  a  marriage  because 
of  the  alleged  mental  incapacity  of  the  plaintiff  at  the  time  the 
marriage  ceremony  was  performed.  The  plaintiff  prevailed  be- 
low. The  defendant  has  appealed. 

The  respondent  alleges  that  he  was  mentally  incompetent  to 
enter  into  a  marriage  contract  when  the  marriage  took  place, 
and  that  as  soon  as  his  competency  was  restored  he  ceased  to 
live  with  the  appellant.  The  appellant  answered,  denying  the 
respondent's  incompetency  at  the  time  of  the  marriage,  and 
alleging:  (i)  That  if  he  was  then  incompetent  he  consum- 
mated the  marriage  by  enjoying  its  privileges  after  the  disabil- 
ity ceased;  and  ^2)  that  he  ratified  the  marriage  after  he  be- 
came competent. 

The  law  presumes  sanity  rather  than  insanity,  and  compe- 
tency rather  than  incompetency.  It  follows  that  one  who  asserts 
his  incompetency  to  enter  into  a  contract,  whether  it  be  a  con- 
tract of  marriage  or  one  of  another  nature,  must  establish  his 
incompetency  at  the  time  the  contract  was  entered  into  by  clear 
and  convincing  evidence.  Thorne  v.  Farrar,  57  Wash.  441,  107 
Pac.  347,  2y  L.  R.  A.  (N.  S.)  385,  135  Am.  St.  Rep.  995. 

It  is  equally  well  settled  that,  where  one  is  induced  to  make 
a  contract  by  the  artifice  or  fraud  of  the  other  party  to  the 
contract,  less  evidence  will  suffice  to  annul  it.  Bishop  on  Con- 
tracts (Enlarged  Ed.),  p.  390;  Bishop  on  Contracts  (2d  En- 
larged Ed.)  §  964. 


14 


MARRIAGE. 


If  the  respondent's  incapacity  was  such  tliat  he  was  incapable 
of  understanding  the  nature  of  the  contract,  that  is,  incapable 
of  understanding  the  obligations  assumed  by  the  marriage,  or 
if  he  was  in  a  state  of  mental  bewilderment  to  the  extent  that 
he  yielded  witliout  demur  to  the  suggestion  of  the  appellant  and 
she'  procured  the  marriage  to  be  entered  into,  he  has  a  right  to 
secure  its  annulment  unless  he  consummated  or  ratified  it  after 
his  competency  was  restored.  Cole  v.  Cole,  5  Sneed  (Tenn.) 
57,  70  Am.  Dec.  275;  Dumphy  v.  Dumphy,  161  Cal.  380,  119 
Pac.  512,  38  L.  R.  A.  (N.  S.)  818,  Ann.  Cas.  1913B,  1230; 
Hagenson  v.  Hagenson,  258  111.  197,  loi  N.  E.  606. 

"The  true  test  in  actions  to  annul  a  marriage  on  account  of 
insanity  at  tlie  time  of  the  marriage,"  says  Nelson,  Diyorce  & 
Separa'tion,  §  658,  "is  whether  the  party  was  capable  of  under- 
standing the  obligations  assumed  by  the  marriage." 

It  needs  no  argument  to  show  that,  if  the  respondent  was 
mentally  incompetent  to  enter  into  the  marriage  contract,  or  if 
he  was  so  mentally  deranged  that  he  did  whatever  the  appel- 
lant suggested,  there  could  be  fieither  consummation  nor  ratifi- 
cation so  long  as  the  incapacity  or  the  derangement  and  undue 
influence  continued.  Ayakian  y.  Avakian,  69  N.  J.  Eq.  89,  60 
Atl.  521 ;  Gillett  v.  Gillett,  78  Alich.  184,  43  N.  W.  iioi. 

The  facts  in  brief  are  these :  The  respondent  is  a  physician 
46  years  of  age,  and  the  appellant  is  a  nurse  30  years  of  age. 
The  respondent  had  been  for  many  years  afflicted  with  insom- 
nia, and  had  at  times  taken  drugs  in  large  quantities  to  over- 
come it.  His  mother,  to  whom  he  was  greatly  devoted,  had 
been  ill  for  some  time,  and  he  had  been  her  physician  and 
nurse.  Her  condition  grew  worse  and  he  called  in  Dr.  Winslow- 
On  January  26,  191 3,  her  condition  was  so  alarming  as  to  cause 
the  respondent  great  mental  worry.  Prior  to  that  date  he  had 
casually  met  the  appellant  two  or  three  times.  On  and  after 
that  date  the  appellant  visited  his  home  daily,  and  after  a  day 
or  two  kept  him  at  her  sanitarium  at  nighttime  and  gave  him 
drugs  and  hot  baths,  as  she  says,  to  produce  sleep.  She  claims 
that  they  became  engaged  about  the  30th  of  January.  He  says 
that  he  has  no  recollection  of  either  a  courtship  or  engagement. 
She  kept  him  under  her  control  until  February  4th.  On  the 
forenoon  of  that  day  they  applied  for  a  marriage  license,  which 
the  auditor,  at  the  suggestion  of  the  respondent's  friends,  re- 
fused to  issue.  In  the  afternoon  they  met  at  the  home  of  Dr. 
Powers,  who  was  the  respondent's  pastor.  The  respondent  was 
then  examined  by  Drs.  Winslow  and  Nicholson.  Dr.  Winslow 
is  a  specialist  in  the  effect  of  drugs.  Dr.  Nicholson  has  special- 
ized in  mental  and  nervous  diseases.  They  agreed  that  the  re- 


WAUGHOP  V.   WAUGIIOP.  I5 

spondent  was  not  then  mentally  competent  to  enter  into  the 
marriage  relation,  owin.c^  to  the  excessive  use  of  drugs,  and  so 
advised  tlie  aiipellant.  Dr.  Powers  had  theretofore  declined  to 
perform  a  marriage  ceremony  because  of  respondent's  mental 
condition.  Despite  the  advice  of  the  physicians,  the  advice 
and  protest  of  Dr.  Powers  and  the  earnest  protest  of  the  repre- 
sentative's relatives,  they  procured  the  license  at  11:30  that 
night  and  were  married  at  midnight.  They  lived  together  at 
the  sanitarium  conducted  by  the  appellant  from  February  4th 
until  February  12th,  when  the  respondent  left  the  appellant. 
On  February  13th  he  brought  this  action  to  annul  the  marriage. 

There  is  great  conflict  in  the  testimony.  Drs.  Winslow  and 
Nicholson,  who  examined  the  respondent  a  few  hours  before 
his  marriage,  say  that  he  was  incompetent  to  contract  at  the 
time  of  the  marriage.  A  number  of  his  relatives  and  friends 
gave  like  testimony,  after  detailing  the  facts  which  formed  the 
basis  of  their  opinion.  On  the  other  side  a  physician  who  never 
saw  the  respondent  until  the  trial,  a  number  of  his  friends,  and 
others,  say  that  he  was  normal.  The  respondent  testified  that 
he  had  no  recollection  of  either  a  courtship  or  a  marriage,  and 
that  he  could  recollect  very  little  that  occurred  between  Janu- 
ary 26th  and  February  12th.  The  appellant  admits  administer- 
ing drugs  to  him,  but  denies  tliat  she  gave  him  enough  to  pro- 
duce mental  incapacit}^  All  the  circumstances  of  the  case 
corroborate  the  respondent.  He  was  hardly  acquainted  with 
the  appellant.  If  the  testimony  of  a  number  of  witnesses  may 
be  believed,  he  could  not  remember  her  name  after  tliey  became 
engaged.  At  least  one  witness  testified  that  he  expressed  a  fear 
that  she  would  take  his  life.  The  slight  acquaintance,  the  haste 
in  entering  into  the  marriage  relation,  the  subsequent  neglect 
of  his  mother,  who  was  dangerously  ill,  the  fact  that  he  gave 
heed  to  his  mother's  suggestion  tliat  he  should  marry  the  ap- 
pellant, given  at  a  time  when.  Dr.  Winslow  says,  she  was  deliri- 
ous and  incompetent,  and  the  further  fact  that  he  was  taking 
drugs  in  large  quantities,  all  point  to  his  incompetency.  He 
seems  to  have  been  absolutely  dominated  by  the  appellant. 
Whatever  she  willed  he  did.  He  was  mere  putty  in  her  hands. 
She  continued  to  give  him  drugs  until  the  9th  or  loth  of  Feb- 
ruary. On  or  about  the  12th  of  February,  he  regained  control 
of  his  faculties,  and  at  once  left  her,  and  took  immediate  steps 
to  secure  an  annulment  of  the  marriage. 

]\Ieasured  by  the  rules  we  have  announced,  we  think  the  court 
correctly  decided  that  the  respondent  was  mentally  incompetent 
at  the  time  of  the  marriage,  and  that  the  marriage  was  not  val- 
idated by  consummation  or  ratification.     *    *    * 

The  judgment  is  affirmed. 


l6  MARRIAGE. 

PRINE  V.  PRINE. 

36  Fla.  676,  18  So.  781,  34  L.  R.  A.  87.   (1895.) 

Action  by  Alathew  Prine  against  Lucy  Prine  for  a  decree 
annulling  tlieir  marriage.  Bill  dismissed  and  counsel  fees 
awarded  defendant.   Affirmed. 

LIDDOX,  J. :  The  appellant  filed  his  bill  in  chancery  against 
the  appellee  in  the  circuit  court  to  set  aside  a  marriage  between 
them.  The  grounds  upon  which  the  said  marriage  was  sought 
to  be  nullified  were :  That  on  the  14th  day  of  February,  A.  D. 
1893,  the  day  when  the  marriage  ceremony  was  performed,  and 
for  some  days  previous  thereto,  the  complainant  was  and  had 
been  in  a  state  of  intoxication  from  the  use  of  ardent  spirits; 
that  he  was  deprived  of  his  reason,  and  in  such  mental  condition 
that  he  did  not  know  what  he  was  about,  and  was  to  all  intents 
and  purposes  non  compos  mentis,  and  that  the  defendant  took 
advantage  of  his  condition,  and  proceeded  to  have  the  marriage 
ceremony  performed ;  that  complainant  repudiated  the  trans- 
action as  soon  as  he  became  sober  enough  to  realize  what  had 
happened,  and  has  ever  since  refused  in  any  manner,  shape,  or 
form  to  recognize  it,  and  has  never  since  lived  or  in  any  man- 
ner cohabitated  with  the  defendant,  and  would  never  cohabit 
with  her,  because  she  had,  for  years  previous  to  said  marriage, 
been  a  person  of  notorious  bad  character  and  reputation.  The 
prayer  of  the  bill  was  that  such  marriage  be  declared  null  and 
void  ab  initio. 

The  answer  of  the  defendant  admitted  the  marriage,  and 
emphatically  and  specifically  denied  all  the  allegations  of  the 
bill  as  to  the  intoxication  of  complainant  and  his  mental  condi- 
tion at  the  time  of  the  marriage  ceremony,  and  that  defendant 
took  any  fraudulent  or  unfair  advantage  of  him,  or  that  he  was 
in  any  such  condition  that  defendant  could  have  taken  any  such 
advantage  of  him  in  having  the  marriage  ceremony  performed. 
The  answer  alleges  that  at  the  time  of  the  marriage  ceremony 
the  complainant  was  perfectly  sober  and  compos  mentis;  that 
she  did  not  procure  tlie  performance  of  said  marriage  cere- 
mony, but  remained  passive  while  the  complainant  procured 
the  same.  The  answer  alleges  that  the  complainant  knew,  be- 
fore and  at  the  time  of  the  marriage,  that  the  defendant  had  not 
been  of  chaste  character,  and  sets  out  in  considerable  detail 
the  circumstances  of  the  courtship  and  marriage  of  the  parties. 
The  answer  also  emphatically  denied  that  the  complainant  h:  d 
refused  to  recognize  the  marriage,  or  had  repudiated  the  same ; 


PRINE  V.  PRINE.  17 

but,  on  the  contrary,  expressly  alleged  that  the  defendant  had 
in  many  ways  ratified  such  marriage  and  consummated  the 
same  by  cohabitation.  The  details  of  acts  constituting  such  rati- 
fication and  cohabitation  were  fully  set  out  in  the  answer. 
[The  court  then  sets  out  the  substance  of  these  details,  and 
after  disposing  of  the  question  of  alimony  and  counsel  fees, 
continues:] 

We  come  now  to  the  consideration  of  the  merits  of  the  appeal. 
Several  assignments  of  error  are  filed,  but  the  only  one  argued 
is  that  the  court  erred  in  rendering  the  final  decree  in  the  case. 
We  will  not  attempt  to  set  out  the  testimony  taken  in  the  case. 
To  do  so  would  require  much  space,  time,  and  labor,  and  not 
greatly  subserve  any  very  useful  purpose.  Upon  the  subject 
of  the  intoxication  of  the  complainant  at  the  time  of  the  mar- 
riage ceremony,  the  evidence  was  extremely  conflicting.  There 
was  certainly  testimony  which,  if  believed,  proved  that  the 
complainant  was  so  much  under  the  influence  of  intoxicants  as 
to  be  wholly  incapable  of  entering  into  any  contract.  This  evi- 
dence, however,  was  contradicted  by  other  evidence,  which,  if 
true,  showed,  if  the  complainant  vras  intoxicated  at  all,  it  was 
to  a  very  slight  extent,  and  not  sufficient  to  deprive  him  of  tlie 
use  of  his  reasoning  faculties.  Upon  this  point  we  can  not  say 
that  the  decree  of  the  court  was  against  the  weight  of  evidence. 
Repeated  acts  of  cohabitation  when  the  complainant  was  sober, 
subsequent  to  and  ratifying  the  marriage,  were  proved  upon 
the  part  of  the  appellant,  and  he  made  no  effort  whatever  to 
contradict  tlie  same.  The  amount  of  solicitor's  fees  allowed  by 
the  decree  was  less  than  was  shown  to  be  reasonable  and  proper 
by  the  undisputed  testimony  of  members  of  the  bar.  The  decree 
was  in  all  respects  in  accordance  with  tlie  evidence  in  the  case. 

As  to  the  law  applicable  to  the  facts,  it  can  not  be  doubted 
that  if  the  party,  at  the  time  of  entering  into  the  contract,  is  so 
much  intoxicated  as  to  be  non  compos  mentis,  and  does  not 
know  what  he  is  doing,  and  is  for  the  time  deprived  of  reason, 
the  marriage  is  invalid;  but  it  is  not  invalid  if  the  intoxication 
is  of  less  degree  than  that  stated,  i  Bish.  Ma.v.,  Div.  &  Sep., 
§  607  et  seq. ;  Erowne,  Dig.  Div.  &  A.,  p.  197.  On  the  other 
hand,  it  is  equally  well  established  that  a  marriage,  invalid  at 
the  time  for  want  of  mental  capacity,  may  be  ratified  and  made 
valid  afterwards  by  any  acts  or  conduct  which  amount  to  a  rec- 
ognition of  its  validity.  A  lunatic,  on  regaining  his  reason,  niay 
aftirm  a  marriage  celebrated  while  he  was  insane,  and  this  with- 
out any  new  solemnization.  Cole  v.  Cole,  5  Sneed  (Tenn.)  57  ; 
Sabalot  v.  Populus,  31  La.  Ann.  854;  i  Bish.  ^Nlar.,  Div.  &  Sep., 
§§  614,  624;  Browne,  Dig.  Div.  &  A.,  pp.  206,  207. 
2 — C.\SES  DoM.  Rel. 


l8  MARRIAGE. 

The  appellant,  in  view  of  what  he  calls  his  unfortunate  situa- 
tion, asks  us  to  take  the  most  favorable  view  which  the  law,  as 
applied  to  all  tlie  testimony  shown  by  the  record,  will  permit  to 
be  given  his  case.  This  we  have  been  inclined  to  do,  but  have 
not  been  able  to  reach  a  different  conclusion  from  that  an- 
nounced by  us,  without  doing  violence  to  the  law  and  the  testi- 
mony. The  situation  of  the  appellant  is  indeed  a  peculiar  one. 
He  is  married  to  a  woman  who,  tlie  evidence  clearly  shows, 
before  her  marriage,  was  a  public  prostitute.  The  appellant  was 
fully  acquainted  with  her,  and  her  character  and  reputation. 
The  large  allowance  against  him  for  alimony  and  suit  money, 
and  tlie  costs  decreed  against  him,  make  him  pay  dearly  for  his 
folly.  By  his  own  rash  and  reckless  conduct  he  has  placed 
himself  in  a  position  from  which  we,  upon  this  record,  have 
no  power  to  extricate  him.  The  appellant  is  ordered  to  pay  botli 
the  costs  of  the  application  for  alimony  and  the  costs  of  appeal. 

The  petition  for  alimony,  counsel  fees,  and  suit  money,  ex- 
cept as  to  court  costs,  is  denied. 

The  decrees  of  the  circuit  court,  dismissing  the  bill  of  com- 
plaint, and  awarding  counsel  fees  against  appellant,  are 
affirmed. 


LEWIS  V.  LEWIS. 

44  Minn.  124,  46  N.  W.  323,  9  L.  R.  A.  505,  20  Am.  St.  559. 

(1890.) 

Action  by  a  husband  to  annul  his  marriage  to  defendant. 
Judgment  for  defendant.   Affirmed, 

VANDERBURGH,  J. :  The  statute  in  reltion  to  divorces 
(Gen.  St.  ch.  62,  §  2)  provides  that  "when  either  of  the  parties 
*  *  *  for  want  of  age  or  understanding  is  incapable  of  as- 
senting thereto,  *  *  *  the  marriage  shall  be  void  from  the 
time  its  nullity  is  declared  by  a  court  of  competent  authority." 
Certain  limitations  are  imposed  by  sections  4  and  5,  as  follows: 
"Nor  shall  the  marriage  of  any  insane  person  be  adjudged  void 
after  his  restoration  to  reason,  if  it  appears  that  the  parties 
freely  cohabitated  together  as  husband  and  wife  after  such 
insane  person  was  restored  to  a  sound  mind.  Sec.  5.  No  mar- 
riage shall  be  adjudged  a  nullity  at  the  suit  of  the  party  capable 
of  contracting,  on  the  ground  that  the  other  party  was  *  *  * 
insane,  if  such  *  *  *  insanity  was  known  to  the  party  capa- 
ble of  contracting  at  the  time  of  such  marriage."  There  are  no 


LEWIS  V.   LEWIS,  19 

Other  provisions  on  the  subject  of  insanity,  and  no  form  of 
insanity  or  insane  delusion  is  included  in  the  list  of  causes  for 
divorce ;  and  insanity  arisinj^  subsequent  to  the  marriage  affords 
no  ground  for  divorce.  The  section  iirst  quoted  is  simply  de- 
claratory of  the  common  law.  There  must  have  been,  at  the 
time  of  the  marriage,  such  want  of  understanding  as  to  render 
the  party  incapable  of  assenting  to  the  contract  of  marriage. 

The  plaintiff  applies  for  a  decree  of  nullity  on  the  ground  of 
his  wife's  insanity  at  the  time  of  his  marriage,  of  which  he 
claims  to  have  then  had  no  knowledge.  The  particular  form  of 
insanity  alleged  was  a  morbid  propensity  on  the  part  of  the  wife 
to  steal,  commonly  denominated  "kleptomania."  It  was  not 
proved,  nor  is  it  found  by  the  court,  that  she  was  not  otherwise 
sane,  or  that  her  mind  was  so  affected  by  this  peculiar  propen- 
sity as  to  be  incapable  of  understanding  or  assenting  to  the  mar- 
riage contract.  Whether  the  subjection  of  the  will  to  some  vice 
or  uncontrollable  impulse,  appetite,  passion,  or  propensity  be 
attributed  to  disease,  and  be  considered  a  species  of  insanity  or 
not,  yet,  as  long  as  the  understanding  and  reason  remain  so  far 
unaffected  and  unclouded  that  the  afflicted  person  is  cognizant 
of  tlie  nature  and  obligations  of  a  contract  entered  into  by  him 
or  her  with  another,  the  case  is  not  one  authorizing  a  decree 
avoiding  the  contract.  Any  other  rule  would  open  the  door  to 
great  abuses.  Anon,  4  Pick.  (!Mass.)  32;  St.  George  v.  Bidde- 
ford,  76  Maine  593 ;  Durham  v.  Durham,  10  Prob.  Div.  80. 
For  a  discussion  upon  the  characteristics  of  the  peculiar  infirm- 
ity to  which  the  defendant  here  is  alleged  to  be  subject,  see  i 
Whart.  &  S.  I\Ied.  Jur.  (4th  Ed.)  §§  591,  595.  The  cases  are 
numerous  in  which  contracts  and  wills  have  been  upheld  by  the 
courts,  though  the  party  executing  the  same  is  subject  to  some 
peculiar  form  of  insanity,  so  called,  or  is  laboring  under  cer- 
tain insane  delusions.  In  re  Blakely's  Will,  48  \\ls.  294,  4 
N.  W.  337;  Jenkins  v.  jMorris,  14  Ch.  Div.  674;  11  Amer.  & 
Eng.  Enc.  Law,  iii,  and  cases. 

The  defendant  is  found  to  have  been  subject  to  this  infirmity 
at  the  time  of  her  marriage  with  plaintiff,  in  1882,  but  it  was 
concealed  and  kept  secret  from  the  plaintiff  by  her  and  her  rel- 
atives, and  was  not  discovered  by  him  until  1888.  As  before 
suggested,  if  it  had  developed  after  the  marriage,  the  plaintiff 
would  not  have  been  entitled  to  judicial  relief,  though  the  con- 
sequences might  have  been  equally  serious  to  him.  But  the 
plaintiff  contends  that  such  concealment  constituted  a  case  of 
fraud,  such  that  the  court  should  declare  the  contract  of  mar- 
riage void  on  that  ground.  \\'here  one  is  induced,  by  deception 
or  stratagem,  to  marry  a  person  who  is  under  legal  disability, 


20  MARRIAGE. 

phN-sical  or  mental,  the  fraud  is  an  additional  reason  why  the 
unlawful  contract  should  be  annulled.  And  so  deception  as  to 
the  identity  of  a  person,  artful  practices  and  devices,  used  to 
entrap  young,  inexperienced,  or  feeble-minded  persons  into  tlie 
marriage  contract,  especially  when  employed  or  resorted  to  by 
tliose  occupying  confidential  relations  to  them,  and  where  the 
contract  is  not  subsequently  ratified,  are  proper  cases  for  the 
consideration  of  the  court.  But,  generally  speaking,  conceal- 
ment or  deception  by  one  of  the  parties  in  respect  to  traits  or 
defects  of  character,  habits,  temper,  reputation,  bodily  health, 
and  the  like,  is  not  sufficient  ground  for  avoiding  a  marriage. 
The  parties  must  take  the  burden  of  informing  themselves,  by 
acquaintance  and  satisfactory  inquiry,  before  entering  into  a 
contract  of  the  first  importance  to  themselves  and  to  society  in 
general.  Reynolds  v.  Reynolds,  3  Allen  (Mass.)  605,  608; 
Leavitt  v.  Leavitt,  13  IMich.  452,  456;  i  Cooley,  Bl.  439,  and 
notes.  The  facts  found  do  not  present  a  case  warranting  the 
relief  asked. 

Judgment  affirmed 


e.  Difference  of  Race. 

Whittington  v.  McCaskill,  65  Fla.  162,  61  So.  236,  post, 

p.  67. 
State  V.  Bell,  7  Baxter  (Tenn.)  9,  32  Am.  Rep.  549, 

post,  p.  75. 
State  V.  Ross,  y6  N.  Car.  242,  22  Am.  Rep.  678,  post, 

p.  76. 
State  V.  Kennedy,  76  N.  Car.  251,  22  Am.  Rep.  683, 

post,  p.  85. 

f .  Prohibitions  After  Divorce. 

State  V.  Shattuck,  69  Yt.  403,  38  Atl.  81,  40  L.  R.  A. 

428,  60  Am.  Rep.  936,  post,  p.  86. 
State  V.  Fenn,  47  Wash.  561,  92  Pac.  417,  post,  p.  91. 
Lanham  v.  Lanham,  136  \\'is.  360,  post,  p.  95. 

PHILLIPS  (Inhabitants  of)  v.  MADRID  (Inhabitants  of). 

83  Maine  205,  22  Atl.  114,  12  L.  R.  A.  862,  23  Am.  St.  770. 

(1891.) 

LIBBEY,  J. :    Assumpsit  for  pauper  supplies  furnished  by 
the  plaintiff  town  for  the  relief  of  Lorestein  Hinkley,  Ella  R. 


PHILLIPS  V.    MADRID.  21 

Hinkley,  as  his  wife,  and  Barnard  C.  Hinkley  and  Harry  L. 
Hinklcy,  their  sons. 

By  the  a.c^rcement  of  the  parties,  it  appears  that  Lorestein 
Hinkley  had  his  legal  settlement  in  the  defendant  town,  and  the 
right  to  recover  for  what  was  furnished  him  is  admitted.  The 
right  to  recover  for  the  supplies  furnished  Ella  R.  and  tlie  two 
sons  depends  upon  the  legality  of  the  marriage  of  said  Lorestein 
and  Ella  R. 

By  the  agreed  facts,  it  appears  that  said  Ella  R.  was  legally 
married  to  one  Wardwell,  of  Clinton,  in  this  state,  j\Iay  25, 
1879;  that  she  and  her  husband  afterwards  moved  to  I\Iassa- 
chusetts,  where  they  separated,  and  she  returned  to  this  state  ; 
that  while  she  was  residing  here  a  libel  for  divorce  was  com- 
menced by  her  husband  in  the  court  of  Massachusetts,  duly 
served  on  her  in  this  state,  and  that  a  decree  nisi  of  divorce 
was  granted  by  the  court  there  in  November,  1882,  for  the 
adultery  of  the  wife,  which  was  duly  made  absolute  in  Novem- 
ber, 1883.  Said  Ella  R.  remained  in  this  state,  and  on  the  6th 
of  September,  1884,  was  duly  married  to  said  Hinkley,  in  said 
town  of  Phillips. 

It  is  claimed  by  the  defendants  that  by  the  statute  of  Massa- 
chusetts, and  of  this  state,  in  1883,  a  husband  or  wife  for  whose 
fault  a  divorce  was  granted  could  not  marry  again  within  two 
years  from  the  decree  of  divorce,  and  as  that  time  had  not 
elapsed  when  the  paupers  were  married,  in  September,  1884, 
their  marriage  was  illegal,  and  that  Ella  R.  and  her  two  sons 
do  not  take  the  pauper  settlement  of  said  Lorestein. 

We  think  this  contention  is  not  sound.  When  the  divorce 
was  granted,  Ella  R.  was  no  longer  tlie  wife  of  W'ardwell. 
Burlen  v.  Shannon,  115  ]\Iass.  438;  Com.  v.  Putnam,  i  Pick. 
(Alass.)  136.  The  prohibition  to  remarry  within  the  time  named 
was  in  the  nature  of  a  penalty.  It  had  no  force  as  a  disability  to 
remarry  out  of  the  state  of  J\Iassachusetts.  It  did  not  attach  to 
the  person  of  the  wife  in  this  state.  This  rule  is  held  in  many 
courts.  Cox  V.  Combs,  8  B.  Mon.  (Kv.)  231  ;  People  v.  Chase, 
28  Plun  (N.  Y.)  310;  Ponsford  v.  Johnson,  2  Blatchf.  (U.  S.) 
51  :  ]\Ioore  v.  Hegeman,  92  N.  Y.  521 ;  Van  Voorhis  v.  Brint- 
nall,  86  N.  Y.  18;  Thorp  v.  Thorp,  90  N.  Y.  602;  Van  Storch 
V.  Griffin,  71  Pa.  St.  240;  Commonwealth  v.  Lane,  113  Mass. 

458- 

Nor  does  the  prohibition  upon  the  guilty  party  to  remarry  by 
the  statute  of  this  state  attach  to  said  Ella  R.  Our  statute'  ap- 
plies only  to  divorces  granted  by  the  courts  in  this  state.  It 
has  no  reference  to  a  decree  granted  in  another  state.  Bullock 
V.  Bullock,  122  Mass.  3. 


22  MARRIAGE. 


We  think  tlie  marriage  of  said  Lorestein  and  Ella  R.  was 
legal,  and  that  tlie  plaintiffs  are  entitled  to  judgment  for  the 
full  amount  claimed. 

Defendants  defaulted. 


3.    Reality  of  Consent. 
a.  Duress. 

QUEALY  V.  WALDRON. 

126  La.  258,  52  So.  479,  27  L.  R.  A.  (N.  S.)  803,  20  Ann.  Cas. 

1374.    (1910.) 

Suit  by  Joseph  L.  Quealy  against  Imelda  Waldron  to  annul 
a  marriage  celebratecTbetween  them.  Judgment  for  plaintiff. 
Affirmed. 

LAND,  J. :  This  is  a  suit  to  annul  a  marriage  celebrated  on 
the  24th  day  of  February,  1908,  between  the  plaintiff  and  tlie 
defendant,  by  a  Catholic  priest,  in  the  city  of  New  Orleans. 
The  alleged  ground  of  nullity  is  that  plaintiff's  consent  to  the 
celebration  was  produced  by  violence  and  threats  used  by  cer- 
tain male  relatives  of  the  defendant. 

The  defendant  filed  an  exception  of  no  cause  of  action,  which 
was  overruled,  and  then  pleaded  the  general  issue. 

There  was  judgment  in  favor  of  the  plaintiff  annulling  the 
marriage,  and  the  defendant  has  appealed. 

Early  in  the  morning  of  February  24,  1908,  the  plaintiff  was 
assaulted  in  his  office  by  two  armed  relatives  of  the  defendant, 
and  was  induced  by  violence  and  threats  to  consent  to  the  cele- 
bration of  a  hasty  marriage  between  himself  and  the  defendant. 
Plaintiff,  a  young  man  24  years  old,  was  escorted  by  the  two 
armed  men  to  the  house  of  the  priest,  thence  to  procure  a  mar- 
riage license  and  a  wedding  ring,  then  to  the  church,  and^  the 
escorts  were  present  during  the  performance  of  the  marriage 
ceremony.  Then  the  parties  separated  ;  the  plaintiff  going  to  the 
house  of  his  father.  A  montli  later  the  present  suit  was  insti- 
tuted. 

The  evidence  raises  not  the  slightest  suspicion  of  any  im- 
proper relations  between  the  plaintiff  and  the  defendant,  and 
only  an  inference  that  there  may  have  been  a  promise  of  mar- 
riage between  the  parties.  The  legal  exclusion  of  the  testi- 
mony of  the  husband  and  wife,  and  the  failure  of  the  two  assail- 


QUEALY  V.    WALDRON.  23 

ants  to  testify,  leave  j^aps  in  the  story,  commencing  with  the 
assault  on  the  plaintiff  and  terminating  with  the  separation  of 
the  parties  after  the  performance  of  the  ceremony. 

The  contention  of  the  defendant  is  that,  the  plaintiff  having 
acquiesced  to  the  marriage  ceremony,  the  marriage  was  valid, 
although  violence  and  threats  were  employed  in  the  beginning 
to  coerce  consent.  This  argument  assumes  that,  after  the 
assault  on  the  plaintiff  in  his  ])lace  of  business,  he  reluctantly, 
but  of  his  own  free  will,  consented  to  wed  the  defendant.  That 
the  plaintiff  seemingly  acquiesced  in  the  marriage  ceremony  is 
shown  by  the  evidence.  On  the  other  hand,  the  plaintiff  con- 
tends, and  the  judge  below  so  held,  that  this  apparent  consent 
was  produced  by  the  antecedent  threats  and  violence  employed 
to  coerce  the  will  of  the  plaintiff.  This  is  a  fair  inference,  as  the 
two  armd  men  constantly  attended  on  the  plaintiff  until  after 
the  performance  of  the  marriage  ceremony.  Plaintiff  was  sep- 
arated from  his  friends,  and  was  surrounded  by  the  relatives  of 
the  defendant.  The  creators  of  the  fear  having  been  present 
throughout  the  transaction,  it  may  be  assumed  that  the  fear 
continued  and  produced  the  apparent  acquiescence  of  the  plain- 
tiff in  the  marriage  ceremony.  The  immediate  separation  there- 
after of  the  contracting  parties  fortifies  this  conclusion. 

The  case  of  Collins  v.  Ryan,  49  La.  Ann.  1710,  22  South. 
920,  43  L.  R.  A.  814,  cited  by  counsel  for  the  defendant,  dift'ers 
widely  in  its  facts  from  tlie  case  at  bar.  In  that  case,  there  was 
no  open  threat  of  violence  or  hostile  demonstration,  and,  if  tlie 
language  used  by  the  single  relative  contained  an  implied  threat, 
it  was  not  of  such  a  nature  as  to  coerce  the  will  of  a  man  of 
ordinary  firmness.  ]\Ioreover,  in  Collins  v.  Ryan,  tlie  defendant 
had  been  seduced  by  the  plaintiff,  who,  on  being  told  that  he  had 
to  marry  her,  promised  to  do  what  was  honorable,  if  given  a 
little  time.  The  court  in  that  case  properly  held,  we  think,  that 
the  consent,  while  reluctant  and  passive,  was  not  forced  by 
threats  or  violence,  but  was  rather  the  result  of  moral  pressure. 
"It  is  not  every  degree  of  violence  or  every  kind  of  threat  tliat 
will  invalidate  a  contract;  they  must  be  such  as  would  natur- 
ally operate  on  a  person  of  ordinary  firmness,  and  inspire  a 
just  fear  of  great  injury  to  person,  reputation  or  fortune."  Civ. 
Code,  art.  185 1.  It  is  also  textual  law  that  "a  contract,  pro- 
duced by  violence  or  threats,  is  void,  although  the  partv,  in 
whose  favor  the  contract  is  made,  did  not  exercise  the  violence 
or  make  the  threats,"  and  was  "ignorant  of  them."  Id.  art.  1852. 

The  law  considers  marriage  in  no  other  view  than  a  civil 
contract.  Civ.  Code.  art.  86.  Xo  marriage  is  valid  to  which 
tlie  parties  have  not  fully  consented,  and  "consent  is  not  free" 


24 


MARRIAGE. 


"when  it  is  extorted  by  violence."  Id.  art.  91.  Violence  may  be 
physical  or  moral ;  that  is  to  say,  it  may  consist  of  the  coercion 
of  the  person  continuing  down  to  the  moment  of  the  celebra- 
tion of  the  marriage,  or  of  the  coercion  of  the  will  by  antece- 
dent threats  of  bodily  harm.  In  the  latter  case,  the  person  is 
forced  to  elect  between  consenting  to  marry  and  exposure  to 
the  threatened  evils.  Such  a  forced  consent  does  not  bind  the 
person  who  has  been  constrained  to  choose  the  alternative  of 
marriage.    Baudry-Lacantinerie,  Droit  Civil,  vol.  2,  Nos.  1714, 


171.-) 


The  question  whetlier  the  violence  employed  in  a  particular 
case  is  sufficient  to  annul  tlie  marriage  is  in  its  nature  one  of 
fact  left  entirely  to  the  appreciation  of  the  judge.  Carpentier- 
Du  Saint,  Repertoire,  etc.,  vol.  27,  p.  328,  No.  132. 

We  agree  with  the  judge  a  quo  that  the  violence  employedin 
the  instant  case  was  sufficient  to  constrain  the  will  of  the  plain- 
tiff and  to  vitiate  his  consent  to  the  marriage. 

Judgment  affirmed. 


GRIFFIN  V.  GRIFFIN. 

130  Ga.  527,  61  S.  E.  16,  16  L.  R.  A.  (N.  S.)  937,  14  Ann. 

Gas.  866.    (1908.) 

Action  by  John  E.  Griffin  against  Lilla  Griffin  and  others  to 
annul  a  marriage  and  cancel  a  bond  given  for  the  purpose  of 
stopping  a  prosecution  for  seduction.  Judgment  for  defend- 
ants.  Affirmed. 

EVANS,  P.  J. :  The  plaintiff,  against  whom  a  warrant  for 
seduction  had  been  issued,  stopped  the  prosecution  by  marrying 
the  female  alleged  to  have  been  seduced,  and  by  giving  the  stat- 
utory bond.  Section  388  of  the  Penal  Code  of  1895  provides 
that  a  prosecution  for  seduction  "may  be  stopped  at  any  time 
by  the  marriage  of  the  parties,  or  a  bona  fide  and  continuing 
offer  to  marry  on  part  of  the  seducer:  Provided,  that  the 
seducer  shall  at  the  time  of  obtaining  the  marriage  license  from 
the  ordinary  of  the  county  of  the  female's  residence  give  a  good 
and  sufficient  bond  in  such  sum  as  said  ordinary  may  deem 
reasonable  and  just,  taking  into  consideration  the  condition  of 
the  parties,  payable  to  said  ordinary  and  his  successors  in  office, 
and  conditioned  for  the  maintenance  and  support  of  the  female 
and  her  child  or  children,  if  any,  for  the  period  of  five  years. 
If  the  defendant  is  unable  to  give  the  bond,  the  prosecution 


GRIFFIN  V.  GRIFFIX.  25 

shall  not  be  at  an  end  until  he  shall  live  with  the  female,  in 
good  faith,  for  five  years." 

The  plaintiff  seeks  in  this  proceeding  to  have  his  marriage 
annulled  and  the  bond  canceled  because  of  the  conduct  of  his 
wife  and  her  father  alleged  in  the  petition.  He  contends  that 
the  circumstances  under  which  he  married  amounted  to  duress. 
"Duress  consists  in  any  illegal  imprisonment,  or  legal  impris- 
onment used  for  an  illegal  purpose,  or  threats  of  bodily  or  other 
harm,  or  other  m.eans  amounting  to  or  tending  to  coerce  the 
will  of  another,  and  actually  inducing  him  to  do  an  act  con- 
trary to  his  free  will."  Civ.  Code  1S95,  §  3536. 

The  facts  relied  on  to  constitute  duress  are  the  assertion  by 
Ragsdale  to  the  plaintiff's  father  that  Ragsdale's  daughter  had 
been  seduced  by  the  plaintiff,  and  that  Ragsdale  intended  to 
prosecute  tlie  plaintiff  for  seduction  unless  the  plaintiff  mar- 
ried her,  and  that  the  neighbors  of  Ragsdale  had  made  up  a 
large  sum  of  money  to  be  employed  in  the  prosecution;  that 
after  the  warrant  had  been  issued  the  plaintiff's  father  com- 
municated these  matters  to  him,  and  advised  and  comm.anded 
him  to  stop  the  prosecution  by  marrying  the  woman  alleged  to 
have  been  seduced,  and  giving  the  bond  required  by  the  statute 
in  such  cases. 

There  is  no  charge  that  the  warrant  was  illegally  issued,  or 
tliat  tlie  money  which  was  to  be  contributed  by  the  neighbors 
was  to  be  vmlawfully  employed  In  the  aid  of  the  prosecution. 
Nor  is  it  alleged  that  any  force  or  threat  of  personal  violence 
was  used  to  induce  the  plaintiff  to  marry.  On  th.e  contrary,  it 
appears  that  when  his  father  received  information  that  Rags- 
dale intended  to  prosecute  him,  and  had  caused  a  warrant  to 
be  issued,  the  father  advised  with  the  son  as  to  the  best  course 
to  pursue.  In  that  conference  the  plaintiff  protested  liis  inno- 
cence. The  father  had  previously  taken  legal  advice,  and  told 
his  son  that  the  Ragsdales'  standing  was  such  that  they  would 
convict  him ;  that  is,  tliat  a  jury  would  likely  believe  their  testi- 
mony. Two  courses  were  open  to  him :  Either  to  face  a  trial 
and  abide  its  legitimate  consequences,  or  to  stop  the  prosecu- 
tion in  compliance  with  the  statute.  The  plaintiff's  conduct 
shows  that  he  made  his  election  not  because  of  any  demand  of 
Ragsdale,  but  to  avail  himself  of  the  statute,  to  escape  the  con- 
sequences of  a  prosecution  for  seduction.  Force,  to  constitute 
duress  in  law,  must  be  unlav/ful ;  and  a  man  lawfully  arrested 
on  a  warrant  for  seduction,  who,  to  procure  his  discharge, 
marries  the  woman,  can  not  have  the  marriage  declared  void, 
as  procured  by  duress,  i  Rishop  on  'Slav.,  Piv.  and  Sep.  §  543; 
jMarvin  v.  Marvin,  52  Ark.  425,  12  S.  W.  875,  20  Am.  St.  191  ; 


26  MARRIAGE. 

Lacoste  v.  Guidroz,  47  La.  Ann.  295,  16  So.  836;  Johns  v. 
Johns,  44  Tex.  40;  WilUams  v.  State,  44  Ala.  24;  Sickles  v. 
Carson,  26  X.  J.  Eq.  440.  It  would  be  a  travesty  of  law  for  a 
man  to  be  able  to  avoid  a  criminal  prosecution  for  seduction  by 
virtue  of  a  statute  allowing  him  to  do  so,  and  then  be  permitted 
immediately  tliereafter  in  a  court  of  equity  to  set  aside  the  mar- 
riage on  tlie  ground  that  he  subsequently  discovered  evidence 
to  disprove  the  charge  brought  against  him. 

The  validity  of  the  marriage  is  further  attacked  on  the 
ground  of  fraud.  The  alleged  fraud  is  that  the  Ragsdales  at 
the  time  of  preferring  the  charge  of  seduction  against  him 
knew  that  the  woman  was  not  virtuous,  and  that  he  did  not 
discover,  until  some  time  after  his  marriage,  that  some  three 
years  previously  she  had  committed  fornication  with  a  certain 
person  named  in  the  petition.  The  plaintiff  admits  that  at  the 
time  of  marriage  he  was  informed  that  his  wife  was  pregnant, 
but  denies  that  he  had  carnal  knowledge  of  her  up  to  that  time. 
If  it  be  true,  as  he  so  positively  affirms,  that  he  had  never  car- 
nally known  his  wife  prior  to  his  marriage,  then  her  pregnancy 
gave  him  indubitable  information  that  she  was  not  a  virtuous 
woman,  notwithstanding  the  representations  to  the  contrary. 
With  such  knowledge  he  can  not  be  considered  as  deceived  by 
the  representations  as  to  his  wife's  virtue.     *     *     * 

Judgment  affirmed.   All  the  justices  concur. 

U  - 


SHORO  v.  SHORO. 
60  Vt.  268,  14  Atl.  177,  6  Am.  St.  118.    (1888.) 

Petition  by  a  husband  to  have  the  marriage  of  himself  and 
defendant  annulled  on  the  ground  that  his  consent  was  ob- 
tained by  force  and  fraud.  The  state  statutes  (Vermont  R.  L. 
§  2349)  provide  that  "The  marriage  contract  may  be  annulled 
when  *  *  *  the  consent  of  either  party  was  obtained  by 
force  or  fraud."  Petition  dismissed.  Reversed. 

ROSS,  J. :  This  is  a  petition  to  have  the  marriage  solemn- 
ized between  the  parties  annulled,  alleging,  among  other  things, 
that  the  petitioner's  consent  was  obtained  by  force  and  fraud. 
It  comes  to  this  court  on  the  facts  found  by  the  county  court, 
and  the  exceptions  of  the  petitioner  to  the  refusal  of  the  county 
court  to  annul  the  marriage.  We  have  given  the  matter  some- 
what careful  attention,  both  because  the  marriage  contract  is 


SHORO  V.  SHORO  2"] 

one  in  which  the  pubUc  generally  is  interested,  and  because  no 
attorney  has  appeared  for  the  petitionee. 

The  controlling  facts  found  by  the  county  court  are  that  the 
petitioner,  a  lad  i6  years  old,  never  had  sexual  intercourse 
with  the  petitionee  before  or  after  the  performance  of  the 
marriage  ceremony,  and  never  cohabitated  nor  lived  with  her. 
She  was  older,  of  bad  repute  for  chastity,  and,  without  prob- 
able cause,  maliciously  caused  him  to  be  arrested  upon  bastardy 
proceedings.  He  was  greatly  frightened  by  the  arrest,  pro- 
tested his  innocence,  but  was  told  by  the  officer  he  must  get 
bail  or  go  to  jail.  He  applied  to  his  father  to  bail  him,  and  was 
refused.  The  father  told  him  to  marry  her  or  go  to  jail,  and 
advised  him  to  marry  her,  and  not  live  with  her.  When  pro- 
testing his  innocence  to  the  officer,  the  officer  assured  him  that 
would  not  save  him.  He  took  his  father's  advice,  went  through 
the  marriage  ceremony  performed  by  the  magistrate  who  signed 
the  warrant  for  his  arrest,  while  under  arrest,  in  the  presence 
of  the  officer,  and  while  greatly  frightened,  with  the  fixed  in- 
tention of  never  living  with  her,  which  he  has  fully  carried  out. 

Can  there  be  a  doubt  that  the  marriage  ceremony  was  pro- 
cured by  duress?  What  is  duress?  Says  Air.  Bishop,  (i  ]\Iar. 
&  Div.  §  210)  :  "^^1lcre  a  consent  in  form  is  brought  about  by 
force,  menace,  or  duress, — a  yielding  of  the  lips,  but  not  of  the 
mind, — it  is  of  no  legal  effect."  Bac.  Abr.  under  the  title 
"Duress  :"  "If  a  man  takes  A.  S.  to  wife  by  duress,  though  tlie 
marriage  be  solemnized  in  facie  ecclesias,  yet  it  is  merely  void, 
and  they  are  not  husband  and  wife,  for  without  free  consent 
there  can  be  no  marriage."  Again  he  says:  "It  seems  clearly 
agreed  tliat  where  a  person  is  illegally  restrained  of  his  liberty, 
by  being  confined  in  the  common  jail,  or  elsewhere,  and  during 
such  restraint  enters  into  a  bond  or  other  security,  to  the  per- 
son who  causes  the  restraint,  he  may  avoid  the  same  for  duress 
or  imprisonment."  \lx.  Bishop,  in  §  213,  gives  a  case  agreeing 
in  its  facts  with  the  facts  found  by  the  county  court  in  the 
case  at  bar,  except  the  arrest  was  made  without  warrant,  in 
which  the  marriage  was  annulled  for  duress.  He  intimates 
tliat,  if  the  arrest  was  on  a  legal  process,  it  would  be  otherwise. 
No  doubt  that  would  be  true  if  by  "legal  process"  he  means  is 
"issued  for  legal  cause."  But,  as  to  the  petitioner,  the  process 
on  which  she  caused  his  arrest  was  a  pretense, — a  fiction, — 
because  procured  maliciously,  and  without  probable  cause.  If 
anvtliing,  it  was  worse  than  an  arrest  without  process,  but 
claiming  to  have  one.  Vlx.  Bishop  (§  212)  says:  "A  doubt 
may  be  entertained  whetlier  a  process  would  not  be  void,  if 
shown  to  be  both  malicious  and  without  probable  cause."   But 


28  MARRIAGE. 

illegal  pretense,  as  it  was  so  far  as  regards  the  petitioner,  it 
accomplished  her  wicked  and  unlawful  purpose, — frightened 
the  boy,  and  caused  him  to  consent  to  the  performance  of  tlie 
marriage  ceremony  in  form  only, — a  yielding  of  his  lips,  but 
not  of  his  mind.  Sartwell  v.  Horton,  28  Vt.  370,  and  Hoyt  v. 
Dewey,  50  Vt.  465,  are  full  authority  that  money  procured  by  a 
threatened  arrest,  on  a  charge  which  the  maker  knows  to  be 
false  and  without  foundation  in  fact,  may  be  recovered  back. 
In  Sartwell  v.  Horton  the  case  of  Duke  of  Cadaval  v.  Collins, 
4  Adol.  &  E.  858,  is  cited  with  approval.  The  case  and  decision 
is  stated  as  follows:  "That  was  an  action  to  recover  money 
paid  to  the  defendant  after  the  plaintiff  had  been  served  with 
process.  The  fact  was  found  by  the  jury  that  the  defendant 
knew  that  he  had  no  claim  upon  the  plaintiff  when  he  sued  out 
his  writ.  Coleridge,  J.,  observed  that  "no  case  has  decided  that 
when  a  fraudulent  use  has  been  made  of  legal  process,  both 
parties  knowing  throughout  that  the  money  claimed  was  not 
due,  tlie  party  paying  under  such  process  is  not  to  have  the 
assistance  of  the  law."  Patteson,  J.,  observed  that  "the  jury 
concluded  that  the  defendant  knew  tliat  the  debt  did  not  exist, 
and  that  he  used  die  process  colorably.  To  say  that  money  ob- 
tained by  such  extortion  can  not  be  recovered  back  would  be 
monstrous." 

]\Iuch  more  monstrous,  in  our  judgment,  would  it  be  to  hold 
that  a  boy  only  16  years  old,  whose  verbal  consent  to  a  mar- 
riage ceremony  had  been  extorted  by  the  use  of  a  process 
known  to  be  witliout  probable  cause,  and  used  maliciously, 
instigated  and  set  on  foot  by  an  unchaste,  pregnant  woman  of 
mature  age,  can  not  be  relieved  from  the  lifelong  bondage  of 
such  a  wife.  The  judgment  of  the  county  court  is  reversed, 
and  the  pretended  marriage  annulled  and  vacated. 


b.  Fraud. 

Gould  V.  Gould,  78  Conn.  242,  61  Atl.  604,  2  L.  R.  A. 
(X.  S.)  531,  ante,  p.  2. 

LYON  V.  LYON. 

230  111.  366,  82  N.  E.  850,  13  L.  R.  A.  (N.  S.)  966,  12  Ann. 

Cas.  25.    (1907-) 

Suit  by  James  A.  Lyon  against  Susanne  B.  Lyon  for  an  r.:i- 
nulment'of  their  marriage  on  the  ground  of  fraud.    The  pir- 


LYON  V.   LYON.  29 

ties  were  married  in  1904.  Plaintiff  had  known  defendant  for 
sixteen  years  and  had  learned  that  she  had  been  subject  to  epi- 
leptic attacks,  but  at  the  time  of  their  engagement  defendant 
represented  to  plaintiff  that  she  was  entirely  cured  and  had  had 
no  attack  for  more  than  eight  years.  Relying  on  this  represen- 
tation plaintiff  married  defendant.  After  cohabiting  with  her 
for  several  months  plaintiff  learned  that  her  representations 
were  false;  that  defendant  had  been  subject  to  attacks  of  epi- 
lepsy at  intervals  for  more  than  ten  years  prior  to  their  mar-  • 
riage,  and  suffered  several  attacks  after  the  marriage,  and  that 
she  was  incurable,  ^^■hereupon  plaintiff  at  once  ceased  to  co- 
habit with  defendant  and  returned  her  to  her  parents  in  New 
York  state,  where  the  marriage  had  taken  place.  The  plaintiff 
alleged  the  statute  of  New  York  providing  that  a  marriage 
mav  be  annulled  in  case  the  consent  of  one  of  the  parties  was 
procured  by  fraud.  Upon  demurrer  the  bill  was  dismissed  for 
want  of  equity.  Affirmed. 

DUXX,  J. :  Appellant's  claim  is  that  the  rights  of  the  par- 
ties are  to  be  determined  by  the  law  of  New  York,  where_  the 
marriage  was  contracted,  and  that  by  such  law  this  marriage 
was  subject  to  be  annulled  for  fraud.  Fraud  in  the  state  of 
New  York  is  not  different,  we  presume,  from  fraud  elsewhere. 
If  the  bill  does  not  charge  conduct  which  we  would  hold  fraud- 
ulent, we  can  not  assume  that  the  courts  of  another  state  would 
do  so.  The  bill  alleges  that  the  statutes  of  New  York  provide 
that  the  marriage  may  be  annulled  if  appellant's  consent  was 
obtained  by  fraud.  Our  inquiry  is,  therefore,  whether  the  bill 
shows  that  appellant's  consent  was  obtained  by  fraud,  and  the 
allegation  will  be  construed  according  to  the  law  of  Illinois.  It 
is  not  alleged  that  any  different  definition  of  fraud  has  been 
established  by  statute'  or  prevails  in  New  York,  or  that  the 
statute  declares  that  a  marriage  may  be  annulled  for  a  misrep- 
resentation in  regard  to  the  health  of  one  of  the  parties. 

The  fraud  charged  is  that  the  appellee  falsely  represented 
tliat  she  was  entirely  cured  of  her  epilepsy  and  had  had  no  at- 
tack of  it  in  eight  yc'ars.  So  far  as  her  being  entirely  cured  was 
concerned,  that  was  essentially  a  matter  of  judgment  and 
opinion.  The  false  representation  of  fact  was  that  she  had  had 
no  attack  of  the  disease  for  eight  years.  "As  to  fraud,  in  order 
to  vitiate  a  marriage,  it  should  go  to  the  very  essense  of  the 
contract.  *  *  *  Fraudulent  misrepresentations  of  one 
partv  as  to  birth,  social  position,  fortune,  jjood  health,  and  tem- 
perament can  not,  therefore,  vitiate  the  contract.  Caveat  emp- 
tor is  the  harsh,  but  necessary,  maxim  of  the  law."    Schouler 


30 


MARRIAGE. 


on  Domestic  Relations,  par.  23.  "In  that  contract  of  marriage 
which  forms  the  gateway  to  the  status  of  marriage,  the  parties 
take  each  otlier  for  better  or  worse,  for  richer,  for  poorer,  to 
cherish  each  other  in  sickness  and  in  health ;  consequently  a 
mistake,  whether  resulting  from  accident,  or,  indeed,  generally, 
from  fraudulent  practices  in  respect  to  tlie  character,  fortune, 
health,  does  not  render  void  what  is  done.  To  this  conclusion 
the  authorities  all  conduct  us,  but  different  modes  of  stating 
the  reason  for  it  have  been  adopted.  Thus,  the  qualities  just 
mentioned  are  said  to  be  accidental,  not  going  to  the  essentials 
of  the  relation ;  and  Lord  Stowell,  after  remarking  that  error 
about  the  family  or  fortune  of  an  individual,  though  produced 
by  disingenuous  representations,  does  not  affect  the  validity 
of  the  marriage,  adds :  'A  man  who  means  to  act  upon  such 
representations  should  verify  them  by  his  own  inquiry.  The 
law  presumes  that  he  used  due  caution  in  a  matter  in  which 
his  happiness  for  life  is  so  materially  involved,  and  it  makes  no 
provision  for  relief  of  a  blind  credulity,  however  it  may  have 
been  produced.'  "  i  Bishop  on  Marriage  and  Divorce,  par.  167. 
"It  is  well  understood  that  error,  and  even  disingenuous  repre- 
sentations, in  respect  to  the  qualities  of  one  of  the  contracting 
parties,  as  to  his  condition,  rank,  fortune,  manners,  and  char- 
acter, would  be  insufficient.  The  law  makes  no  provision  for 
the  relief  of  a  blind  credulity,  however  it  may  have  been  pro- 
duced." 2  Kent's  Commentaries,  ^y.  "The  degree  of  fraud 
sufficient  to  vitiate  an  ordinary  contract  will  not  afford  suffi- 
cient ground  for  the  annulment  of  a  marriage.  It  is  not  suffi- 
cient that  the  party  relied  upon  the  false  representations  and 
was  deceived,  or  that  important  and  essential  facts  were  con- 
cealed with  intent  to  deceive.  The  marriage  relation  is  a  status 
controlled  and  regulated  by  considerations  of  public  policy, 
which  are  paramount  to  the  rights  of  the  parties.  *  *  * 
The  fortune,  character,  and  social  standing  of  one  of  the  par- 
ties are  not  essential  elements  of  marriage,  and  it  is  contrary 
to  public  policy  to  annul  marriages  for  fraud  or  misrepresenta- 
tion as  to  such  personal  qualities."  19  Am.  &  Eng.  Ency.  of 
Law  (2d  Ed.)  1 184. 

Concealment  of  the  fact  that  the  woman  had  previously  been 
insane  has  been  held  insufficient  to  justify  a  decree  of  nullity 
of  marriage.  Cummington  v.  Belchertown,  149  Mass.  223,  21 
N.  E.  435,  4  L.  R.  A.  131.  So  has  concealment  of  kleptomania. 
Lewis  V.  Lewis,  44  Minn.  124,  46  N.  W.  323,  9  L.  R.  A.  505, 
20  Am.  St.  559.  Also  concealment  by  a  woman  of  unchastity 
prior  to  marriage.  Leavitt  v.  Leavitt,  13  Mich.  452;  Allen's 
Appeal,  99  Pa.  196,  44  Am.  Rep.  loi ;  Varney  v.  Varney,  52 


LYON  V.   LYON.  3  I 

Wis.  I20,  8  N.  \V.  739,  38  Am.  Rep.  726.  Also  concealment 
of  a  prior  marriage.  Donnelly  v.  Strong,  175  Mass.  157,  55 
N.  E.  892;  Fisk  V.  Fisk,  6  App.  Div.  (N.  Y.)  432,  39  N.  Y.  S. 
537.  Also  concealment  of  the  birth  of  an  illegitimate  child  prior 
to  marriage.  Farr  v.  Farr,  2  MacArth.  (D.  C.)  35;  Smith  v. 
Smith,  8  Ore.  100. 

The  fraudulent  representations  for  which  a  marriage  may  be 
annulled  must  be  of  something  essential  to  the  marriage  rela- 
tion— of  something  making  impossible  the  performance  of  the 
duties  and  obligations  of  that  relation,  or  rendering  its  assump- 
tion and  continuance  dangerous  to  health  or  life.  Smith  v. 
Smith,  171  J\Iass.  404,  50  N.  E.  933,  41  L.  R.  A.  800,  68  Am. 
St.  440;  Ryder  v.  Ryder,  66  Vt.  158,  28  Atl.  1029,  44  Am.  St. 
833  ;  Cummington  v.  Belchertown,  supra. 

The  case  of  Gould  v.  Gou]d,  78  Conn.  242,  61  Atl.  604, 
2  L.  R.  A.  (N.  S.)  531,  is  not  inconsistent  with  these  rules, 
although  it  was  there  held  that  concealment  of  epilepsy  was 
such  a  fraud  as  would  justify  a  decree  of  divorce  under  the 
statute  of  that  state  forbidding  marriage  or  sexual  intercourse 
by  or  with  an  epileptic  under  penalty  of  imprisonment.  The 
court  said  that  a  fraud  was  accomplished  "whenever  a  person 
enters  into  that  [marriage]  contract  knowing  that  he  is  incap- 
able of  sexual  intercourse,  and  yet,  in  order  to  induce  that  mar- 
riage, designedly  and  deceitfully  concealing  tliat  fact  from  the 
other  party,  who  is  ignorant  of  it  and  has  no  reason  to  sup- 
pose it  to  exist.  Whether  such  incapacity  proceeds  from  a 
physical  or  a  merely  legal  cause  is  immaterial.  The  prohibition 
of  the  act  of  1895  fastened  upon  the  defendant  an  incapacity 
which,  if  unknown  to  the  plaintiff  and  by  him  fraudulently  con- 
cealed from  her  with  the  purpose  thereby  to  induce  a  marriage, 
made  his  contract  of  marriage,  in  the  eye  of  the  law,  fraudulent. 
*  *  *  The  superior  court  has  power  to  pass  a  decree  of 
divorce  from  the  bonds  of  matrimony  in  favor  of  a  party  to  a 
marriage  not  an  epileptic,  who  has  been  tricked  into  it  by  the 
other  party,  who  was  an  epileptic,  through  his  fraud  in  inducing 
a  belief  that  he  was  legally  and  physically  competent  to  enter 
into  the  marital  relation  and  fulfill  all  its  duties,  when  he  knew 
that  he  was  not."  The  Supreme  Court  of  New  York,  in  Di 
Lorenzo  v.  Di  Lorenzo,  174  N.  Y.  467,  67  N.  E.  63,  63  L.  R.  A. 
92,  95  Am.  St.  Rep.  609,  held  that  the  representation  by  a 
woman  to  a  man  that  she  had  given  birth  to  a  child  of  which  he 
was  the  father  and  which  she  purported  to  exhibit  to  him,  when 
in  fact  she  had  not  given  birth  to  a  child,  was  such  fraud  as  to 
justify  the  annulling  of  a  marriage  brought  about  thereby. 
This  representation  is  similar  in  kind  to  that  of  a  pregnant 


32 


MARRIAGE. 


woman,  who  induces  a  man  with  whom  she  has  had  illicit 
intercourse  to  marry  her  by  tlie  false  representation  that  he  is 
the  father  of  her  child.  But  such  representation,  under  such 
circumstances,  does  not  constitute  fraud  for  which  the  mar- 
riage will  be  annulled,  and  we  regard  the  decision  in  the  Di 
Lorenzo  case  as  opposed  to  the  weight  of  authority.  Franke  v. 
Franke,  96  Cal.  17,  31  Pac.  571,  18  L.  R.  A.  375 ;  Foss  v.  Foss, 
12  Allen  (Mass.)  26;  Crehore  v.  Crehore,  97  Mass.  330,  93  Am. 
Dec.  98. 

The  statute  of  New  York  mentioned  in  the  bill  merely  de- 
clares the  law  as  it  exists  in  Illinois — that  a  marriage  procured 
by  fraud  may  be  annulled.  The  kind  and  degree  of  evidence 
required  for  such  purpose  must  be  determined  by  the  court  in 
which  the  suit  is  brought,  according  to  the  law  of  the  forum. 
The  bill  proceeds  on  the  theory  that  the  appellant's  consent  to 
the  marriage  was  obtained  by  fraud,  and  sets  out  the  facts  con- 
stituting the  fraud.  Whether  those  facts  constitute  fraud  must 
be  determined  by  the  law  of  tlie  forum,  and  the  superior  court 
did  not  err  in  sustaining  the  demurrer  to  the  bill.  Its  decree, 
and  the  judgment  of  the  Appellate  Court  in  affirmance  thereof, 
will  be  affirmed. 

Judgment  affirmed. 

4.    Formalities  of  Celebration. 

a.  Common-Law  Marriage. 

HULETT  V.  CAREY. 

66  Minn.  327,  69  N.  W.  31,  34  L.  R.  A.  384,  61  Am.  St.  419. 

(1896.) 

Proceedings  for  the  settlement  of  the  estate  of  Nehemiah 
Hulett.  Lucy  A.  Hulett  presented  petitions  for  an  allowance 
of  homestead  to  her  as  Hulett's  widow  and  for  the  vacation  of 
the  probate  of  his  will  on  the  ground  that  it  had  been  revoked 
by  his  marriage  to  her  subsequent  to  its  execution.  Judgment 
in  her  favor  on  both  petitions. 

Mr.  Hulett,  for  many  years  a  resident  of  St.  Louis  county, 
Minn.,  and  generally  supposed  and  reputed  to  be  a  bachelor, 
died  July  25,  1892.  The  petitioner  claimed  to  have  become  his 
wife  by  virtue  of  a  written  contract  as  follows: 

"January  6,  1892.  Contract  of  marriage  between  N.  Hulett 
and  Mrs.  L.  A.  Pomeroy.  Believing  a  marriage  by  contract  to 
be  perfectly  lawful,  we  do  hereby  agree  to  be  husband  and  wife, 


HULETT  V.    CAREY.  33 

and  to  hereafter  live  together  as  such.  In  witness  whereof  we 
have  hereunto  set  our  hands  the  day  and  year  first  above  writ- 
ten.    [Signed]  N.  Hulett.     L.  A.  Pomeroy." 

The  principle  question  before  the  court  was  whether  there 
had  been  a  valid  marriage  between  the  parties.  The  lower  court 
held  that  the  marriage  was  valid  and  this  decision  was  upheld 
by  the  Appellate  Court,  which  affirmed  the  judgment  setting 
aside  the  homestead  for  the  petitioner,  but  reversed  the  judg- 
ment setting  aside  the  probate  of  the  will  on  the  ground  that 
the  marriage,  though  valid,  had  no  such  effect. 

IMITCHELL,  J. :  *  *  *  xhe  respondent  had  been  for  a 
long  time  prior  to  the  execution  of  the  marriage  contract  in  the 
employment  of  Hulett  as  housekeeper  at  his  farm  at  Stoney 
Point,  some  miles  out  of  the  city  of  Duluth.  Her  testimony  is 
that  immediately  after  the  execution  of  this  contract  she  moved 
into  his  room,  and  that  from  henceforth  until  his  death  they 
occupied  the  same  sleeping  apartment,  and  cohabitated  together 
as  husband  and  wife.  But  she  admits  that  it  was  agreed  be- 
tween them  that  their  marriage  was  to  be  kept  secret  until  they 
could  move  into  Duluth,  and  go  to  housekeeping  in  a  house 
which  Hulett  owned  in  that  city.  While  a  feeble  effort  was 
made  to  prove  that  their  marital  relation  had  become  known  to 
one  or  two  persons,  yet  we  consider  the  evidence  conclusive 
that  their  marriage  contract  was  kept  secret,  that  they  never 
publicly  assumed  marital  relations,  or  held  themselves  out  to 
the  public  as  husband  and  wife,  but,  on  the  contrary,  so  con- 
ducted themselves  as  to  leave  the  public  under  the  impression 
that  their  former  relations  of  employer  and  housekeeper  re- 
mained unchanged. 

Upon  this  state  of  facts  the  contention  of  the  appellants  is 
tliat  there  was  no  marriage,  notwithstanding  the  execution  by 
them  of  the  written  contract ;  that,  in  order  to  constitute  a  valid 
common-law  marriage,  the  contract,  although  in  verba  de  prse- 
senti,  must  be  followed  by  habit  or  reputation  of  marriage, — 
that  is,  as  we  understand  counsel,  by  the  public  assumption  of 
marital  relations.  We  do  not  so  understand  the  law.  The  law 
views  marriage  as  being  merely  a  civil  contract,  not  differing 
from  any  other  contract,  except  that  it  is  not  revocable  or  dis- 
soluble at  the  will  of  the  parties.  The  essence  of  tlie  contract 
of  marriage  is  the  consent  of  the  parties,  as  in  the  case  of  any 
other  contract ;  and,  whenever  there  is  a  present,  perfect  con- 
sent to  be  husband  and  wife,  the  contract  of  marriage  is  com- 
pleted. The  authorities  are  practically  unanimous  to  this  effect. 
3 — Cases  Dom.  Rel. 


54 


MARRIAGE. 


Marriage  is  a  civil  contract  jure  gentium,  to  the  validity  of 
which  the  consent  of  parties  able  to  contract  is  all  that  is  re- 
quired by  natural  or  public  law.  If  the  contract  is  made  per 
verba  de  prsesenti,  and  remains  without  cohabitation,  or  if 
made  per  verba  de  future,  and  be  followed  by  consummation, 
it  amounts  to  a  valid  marriage,  in  the  absence  of  any  civil  regu- 
lations to  the  contrary.  2  Kent,  Comm.  p.  87 ;  2  Greenl.  Ev. 
§  460;  I  Bish.  &  Alar.  Div.  §§  218,  227-229.  The  maxim  of  the 
civil  law  was  "Consensus  non  concubitus  facit  matrimonium." 
The  whole  law  on  the  subject  is  that,  to  render  competent  par- 
ties husband  and  wife,  they  must  and  need  only  agree  in  the 
present  tense  to  be  such,  no  time  being  contemplated  to  elapse 
before  the  assumption  of  the  status.  If  cohabitation  follows,  it 
adds  nothing  in  law,  although  it  may  be  evidence  of  marriage. 
It  is  mutual,  present  consent,  lawfully  expressed,  which  makes 
the  marriage,  i  Bish.  Mar.  Div.  &  Sep.  §§  239,  313,  315,  317. 
See,  also,  the  leading  case  of  Dalrymple  v.  Dalrymple,  2  Hagg. 
Consist.  54,  which  is  the  foundation  of  much  of  the  law  on  the 
subject. 

An  agreement  to  keep  the  marriage  secret  does  not  invalidate 
it,  although  the  fact  of  secrecy  might  be  evidence  that  no  mar- 
riage ever  took  place.  Dalrymple  v.  Dalrymiple,  supra.  The 
only  two  cases  which  we  have  found  in  which  anything  to  the 
contrary  was  actually  decided  are  Reg.  v.  Millis,  10  Clark  &  F. 
534,  and  Jewell  v.  Jewell,  i  How.  219;  the  court  in  each  case 
being  equally  divided.  But  these  cases  have  never  been  recog- 
nized as  the  law,  either  in  England  or  in  this  country. 

Counsel  for  appellants  contend,  however,  that  the  law  is  oth- 
erwise in  this  state;  citing  State  v.  Worthingham,  23  Minn. 
528,  in  which  this  court  used  the  following  language :  "Consent, 
freely  given,  is  the  essence  of  the  contract.  A  mutual  agree- 
ment, therefore,  between  competent  parties,  per  verba_  de  pre- 
sent!, to  take  each  other  for  husband  and  wife,  deliberately 
made,  and  acted  upon  by  living  together  professedly  in  that 
relation,  is  held  by  the  great  weight  of  American  authority  ^suf- 
ficient to  constitute  a  valid  marriage  with  all  its  legal  inci- 
dents"; citing  Hutchlns  v.  Kimmell,  31  Mich.  126.  Similar  ex- 
pressions have  been  sometimes  used  by  other  courts,  but  upon 
examination  it  will  be  found  that  in  none  of  them  was  it  ever 
decided  that,  although  the  parties  mutually  agreed  per  verba 
de  prsesenti  to  take  each  other  for  husband  and  wife,  it  was 
necessary,  in  order  to  constitute  a  valid  marriage,  that  this 
agreement  should  have  been  subsequently  acted  upon  by  their 
living  together  professedly  as  husband  and  wife.  In  some 
cases  where  such  expressions  were  used  the  court  was  merely 


HEYMANN  V.  HEYMANN.  35 

Stating  a  proven  or  admitted  fact  in  that  particular  case,  while 
in  others  the  contract  of  marriage  was  sought  to  be  proved  by 
habit  and  repute,  and  the  courts  merely  meant  that  the  act  of 
parties  in  holding  tliemselves  out  as  husband  and  wife  is  evi- 
dence of  a  marriage.  In  State  v.  Worthingham,  supra,  which 
was  a  prosecution  for  bastardy,  tlie  defendant  offered  as  proof 
of  his  marriage  to  the  mother  of  the  child  that  during  all  the 
time  they  lived  and  cohabited  together  the  woman  held  herself 
out  to  her  friends  generally  as  his  wife,  and  that  both  of  them 
represented  to  the  world  that  they  had  been  married.  The  point 
really  decided  by  the  court,  and  evidently  the  only  one  it  had 
in  mind,  was  that  this  was  competent  evidence  of  a  marriage, 
and  that  no  formal  solemnization  or  ceremony  was  necessary 
to  give  it  validity.  The  statement  in  the  opinion  already  cjuoted 
is  probably  subject  to  the  criticism  that  it  does  not  accurately 
discriminate  between  the  fact  of  marriage  and  the  proof  of  it. 
The  case  of  Hutchins  v.  Kimmell,  supra,  cited  by  this  court, 
does  contain  such  expressions  as  "followed  by  cohabitation," 
and  "from  that  time  lived  togetlier  professedly  in  that  relation"  ; 
but  this  language  was  evidently  used  simply  as  a  recital  of  the 
actual  facts  in  that  particular  case.  There  is  notliing  in  the 
opinion  indicating  that  the  court  intended  to  hold  that  a  mutual, 
present  consent  to  be  husband  and  wife  will  not  constitute  a 
valid  marriage  unless  followed  by  cohabitation  of  the  parties, 
and  a  holding  of  tliemselves  out  as  man  and  wife.  Sharon  v. 
Sharon,  75  Cal.  i,  16  Pac.  345,  and  Id.,  79  Cal.  633,  22  Pac.  26, 
131,  is  not  in  point,  for  the  reason  tliat  §  55  of  the  civil  code 
of  that  state  provides  that  "consent  alone  will  not  constitute 
marriage;  it  must  be  followed  by  a  solemnization  or  by  a 
mutual  assumption  of  marital  rights,  duties,  or  obligations."'  In 
view  of  the  increasing  number  of  common-law  widows  laying 
claim  (in  many  instances,  doubtless,  fraudulently)  to  the'  es- 
tates of  deceased  men  of  wealth,  it  is  a  question  for  the  legis- 
lature whether  the  common  law  should  not  be  changed ;  but 
with  that  the  courts  have  nothing  to  do.  *  *  * 
[Judgment  affirmed  in  part  and  reversed  in  part.] 


HEYMANN  v.  HEYMANN. 

218  111.  636,  75  N.  E.  1079.    (1905-) 

Suit  for  separate  maintenance  by  Jennie  Heymann  against 
Albert  Heymann.  Defendant  denied  the  marriage.  Judgment 
for  plaintiff.  Affirmed. 


36  MARRIAGE. 

MAGRUDER,  J. :  In  deciding  this  case  the  Appellate  Court 
expressed  the  following  views : 

"Appellee  contends  in  her  will  and  by  her  own  testimony, 
supported  by  the  testimony  of  several  witnesses  and  a  sworn 
schedule  made  by  appellant,  that  there  was  a  marriage  contract 
between  appellant  and  herself  per  verba  de  praesenti,  followed 
by  cohabitation  and  living  together  as  husband  and  wife  for  a 
period  of  six  years.  Appellant,  on  the  other  hand,  denies  any 
such  contract.  He  denies  any  intimate  relations  with  appellee, 
and  claims  that  his  presence  In  the  same  house  or  apartment 
with  her  was  as  a  roomer  or  boarder.  The  issue  here  is  whether 
the  parties  were  married,  no  ceremony  having  been  performed. 
Appellee  avers  in  her  bill  that  she  was  married  to  appellant  in 
August,  1896,  without  a  marriage  ceremony.  In  her  testimony 
appellee  says  that  in  April,  1896,  appellant,  having  rented  a 
furnished  room  of  her  for  some  time  previous  thereto,  and  be- 
ing about  to  go  to  Lake  Geneva,  where  he  had  an  engagement 
as  a  musician,  proposed  marriage  to  her;  that  she  postponed 
the  matter  until  he  should  return  from  Lake  Geneva;  that  he 
wrote  to  her  from  Lake  Geneva  repeatedly,  and  sent  her  money 
in  letters  to  rent  a  flat,  and  requested  her  to  give  up  keeping 
boarders. 

In  accordance  with  his  suggestions  she  rented  a  flat  at  the 
corner  of  Wood  and  Division  streets,  in  Chicago,  and  moved 
into  it ;  that  appellant  returned  from  Lake  Geneva  in  August, 
1896,  and  the  subject  of  marriage  was  again  talked  over  be- 
tween them.  In  the  course  of  the  conversation,  and  in  answer 
to  appellee's  question  as  to  the  form  of  marriage  in  this  coun- 
try, appellant  stated  to  her  that  it  was  not  necessary  to  get 
married,  conveying  to  her  the  impression  apparently  that  no 
marriage  ceremony  was  necessary.  He  said  to  her :  'I  give  you 
my  word  of  honor  we  can  stay  man  and  wife.  I  am  your  hus- 
band, and  I  am  satisfied.'  Appellee  then  said  that  they  would 
have  to  go  to  a  judge,  and  appellant  replied  that  his  word  was 
better  than  a  judge's  word.  Appellee  stated  that  she  knew  what 
marriage  was  in  the  old  country,  but  that  she  supposed  what 
he  said  was  true ;  that  he  promised  her  to  be  her  husband,  and 
she  consented.  This  was  the  substance  of  their  conversation. 
Thereupon  they  occupied  the  same  bed  that  night,  and  lived 
together  as  husband  and  wife  for  six  years,  until  appellant  left 

Vjp*-  3(C  3jS  SjS 

"To  enter  into  an  analysis  or  full  discussion  of  the  evidence 
here  would  extend  this  opinion  beyond  reasonable  limits.  We 
have  studied  carefully  the  evidence  contained  in  the  record. 


HEYMANN  V.   IIEYMANN.  yj 

and  we  think  It  preponderates  in  favor  of  the  contention  of 
appellee  that  there  was  a  marriage  contract  between  appellant 
and  appellee  per  verba  de  prsesenti,  which  was  immediately- 
followed  by  cohabitation  as  husband  and  wife.  There  is  no 
question  in  the  case  of  the  capacity  of  the  parties  to  enter  into 
the  marriage  relation.  Nor  is  there  any  contention  that  the  par- 
ties were  living  in  a  meretricious  state  before  August,  i896, 
the  date  of  the  marriage  contract  and  the  cohabitation  that  fol- 
lowed it.  While  appellant  has  denied  substantially  everything 
that  appellee  and  nearly  every  witness  on  her  behalf  testified 
to,  his  evidence  does  not  go  to  the  extent  of  showing  that  they 
at  any  time  lived  together  in  clandestine  sexual  intimacy.  Xo 
doubt,  therefore,  is  thrown  upon  the  marriage  contract,  as  tes- 
tified to  by  appellee,  by  reason  of  the  contract  having  been  en- 
tered into  through  the  door  of  a  previous  illicit  intercourse. 

The  proof  in  this  case  brings  it  clearly  within  the  law,  as 
announced  by  our  Supreme  Court  in  Cartwright  v.  McGown, 
121  111.  388,  12  N.  E.  737,  2  Am.  St.  105,  and  the  authorities 
there  cited.  In  the  above  case  it  is  said:  'W'hile  our  statute 
prescribes  certain  formalities  to  be  observed  in  marriages,  and 
certain  steps  to  be  taken  to  preserve  the  evidence  of  their  cele- 
bration, it  does  not  declare  a  marriage  void  which  is  legal  at 
the  common  law,  merely  because  not  entered  into  in  accordance 
with  its  provisions.  Port  v.  Port,  70  111.  484.  A  marriage  is  a 
civil  contract  made  in  due  form,  by  which  a  man  and  woman 
agree  to  take  each  other  for  husband  and  wife  during  their 
joint  lives,  unless  it  is  annulled  by  law,  and  to  discharge  to- 
wards each  other  the  duties  imposed  by  law  upon  such  relation. 
Each  must  be  capable  of  assenting,  and  must  in  fact  consent 
to  form  this  new  relation.  If  a  statute  forbids  the  solemnization 
of  marriage  without  a  license,  still,  in  the  absence  of  a  clause 
of  nullity,  the  marriage  will  be  good,  though  no  license  was 
had.' 

No  particular  form  of  words  is  necessary  to  constitute  a  com- 
mon-law marriage.  If  what  is  done  and  said  evidences  an  in- 
tention by  the  parties  to  assume  the  marriage  status,  and  the 
parties  thereupon  enter  into  the  relation  of  husband  and  wife, 
that  is  sufficient,  whatever  may  be  the  form  of  expression  used. 
Stewart  on  Marriage  and  Divorce,  §  86. 

The  clear  preponderance  and  weight  of  the  evidence  show 
all  the  necessary  legal  elements  of  a  marriage,  as  contemplated 
by  the  law  of  this  state.  This  was  the  view  and  conclusion  of 
the  learned  chancellor,  who  heard  the  witnesses  and  observed 
their  character  and  manner  of  testifying.  His  conclusions  upon 


38  MARRIAGE. 

the  evidence  are  entitled  to  weight.  The  decree  of  the  superior 
court  accords  witli  tlie  law  and  tlie  facts  of  the  case,  and  must 
be  affirmed." 

We  concur  with  the  views  above  expressed  in  the  opinion 
of  the  appellate  court,  and  accordingly  the  judgment  of  the 
appellate  court  is  affirmed. 

Judgment  affirmed. 


ELZAS  v.  ELZAS. 

171  111.  632,  49  N.  E.  717.    (1898.) 

Suit  by  Ada  Elzas  against  Simon  L.  Elzas  for  divorce.  De- 
cree for  plaintiff.   Affirmed. 

CARTWRIGHT,  J. :  Appellee  filed  her  bill  in  the  Circuit 
Court  of  Cook  County  against  appellant  for  a  divorce,  on  the 
ground  of  desertion.  Appellant  answered  the  bill,  denying  its 
allegations,  and  especially  denying  that  he  was  ever  legally  or 
lawfully  married  to  appellee.  There  was  a  hearing  of  the  issues 
before  the  court,  and  they  were  found  for  appellee,  and  a  decree 
was  entered  divorcing  the  parties,  and  awarding  the  custody 
of  their  child,  Allen  L.  Elzas,  to  appellee.  From  that  decree 
an  appeal  was  taken  to  the  Appellate  Court  for  the  First  Dis- 
trict, where  it  was  affirmed. 

The  main  dispute  at  the  hearing  was,  and  now  is,  over  the 
question  whether  the  parties  ever  entered  into  a  legal  contract 
of  marriage.  There  was  no  ceremony  or  public  solemnization 
of  the  contract  between  them,  but  complainant's  claim  was  that 
on  September  15,  1885,  they  entered  into  a  valid  contract  of 
marriage.  When  parties  come  togetlier  and  agree  by  a  present 
contract  to  accept  each  other  as  husband  and  wife  and  enter 
into  the  marriage  relation,  such  a  contract  will  be  valid  and  law- 
ful, although  not  solemnized  according  to  the  provisions  of  tlie 
statute.  The  relation  between  the  parties  is  always  a  matter  of 
evidence,  and  may  be  proved  by  records  or  any  other  evidence 
sufficient  to  establish  the  fact;  and,  if  it  is  shown  that  parties 
intending  marriage  have  accepted  each  other  as  husband  and 
wife,  the  contract  will  be  enforced.  Port  v.  Port,  70  111.  484; 
Hebblethwaite  v.  Hepworth,  98  111.  126. 

Defendant  was  a  gambler,  and  lived  in  Chicago,  and  also 
followed  running  races  in  various  places.  At  the  time  of  the 
marriage,  complainant  was  18  years  of  age,  and  was,  and  for 
some  time  had  been,  an  inmate  of  a  house  of  ill  repute  in  that 


ELZAS  V.  ELZAS.  39 

city.  The  direct  proof  of  the  marriage  consisted  of  her  testi- 
mony to  the  fact,  and  the  testimony  of  her  sister  to  defendant's 
statements  and  admissions.  Complainant  testified  tliat  she  and 
defendant  had  known  each  other  a  httle  over  a  year  at  the  time 
of  the  marriage ;  that  he  had  professed  great  regard  for  her, 
and  had  spoken  of  taking  her  away  from  the  house  where  she 
was,  and  having  her  lead  a  different  life ;  that  he  had  asked  her 
if  she  thought  enough  of  him  to  be  his  wife,  and  she  told  him 
that  she  did;  that  he  had  asked  her  to  consider  and  think  it 
over,  and  let  him  know  if  she  made  up  her  mind  definitely, what 
to  do ;  and  that  she  had  seen  him  daily  for  a  month  previous 
to  the  time  when  he  came  to  her  and  the  agreement  was  made. 
What  occurred  at  that  time  she  narrated  as  follows:  "He  said : 
'Ada,  I  think  you  think  a  great  deal  of  me.  I  do  of  you,  and  will 
you  take  me  as  your  husband?  I  want  you  to  settle  it.  You 
said  you  would  consider  it.'  I  said:  'Yes;  I  think  enough  of 
you,  Sam,  to  live  with  you  and  be  your  wife.'  And  he  said: 
'Well,  from  this  time  I  want  your  consent,  and  will  you  accept 
me  as  your  husband?  And  if  so,  I  will  take  you  as  my  wife.' 
And  I  said :  'Yes ;  I  will.'  I  said :  'Who  will  we  get  to  marry 
us  ?  I  was  always  brought  up  an  Episcopalian,  and  that  church 
calls  for  a  ceremony.'  He  said:  'There  is  no  ceremony  neces- 
sary. I  am  a  Jew,  and  you  are  a  Gentile.  It  would  not  be  more 
legal  if  a  ceremony  was  performed.  It  is  only  a  contract.  I 
agree  to  take  you  as  my  wife,  and  then  we  will  be  husband  and 
wife.'  And  he  then  gave  me  the  ring  I  have.  I  then  consented 
to  be  his  wife."  She  testified  that  he  then  told  her  to  leave  that 
house  at  once ;  she  asked  where  they  should  go,  and  he  told 
her  to  pack  up  her  trunk,  and  get  out  at  once ;  that  she  said, 
"Very  well,"  and  immediately  gathered  up  her  things  ;  and  that 
they  took  rooms  in  a  house  on  Wabash  avenue,  where  they 
lived  until  April  2"],  1886,  when  she  went  to  her  father's  resi- 
dence, at  Toronto,  Canada,  to  remain  for  a  time.  This  visit 
to  Canada  was  by  mutual  agreement  of  the  parties,  and  while 
there  the  boy,  Allen  L.  Elzas,  was  born,  July  i8,  1886.  The 
statement  and  admission  of  defendant  as  to  the  marriage  con- 
tract were  testified  to  by  Alinnie  Bailey,  complainant's  sister, 
as  follows :  "One  evening  we  w^ere  sitting  in  the  parlor,  and  he 
spoke  of  having  a  circumcision  performed  on  the  child,  as  he 
W'as  a  Jew,  and  my  sister  objected,  and  he  said:  'That  is  my 
wish.  I  w^ant  it  done.'  ]\Iy  sister  said :  'Sam,  you  want  your 
way  in  everything.'  And  she  was  quite  indignant,  and  she  said  : 
'When  we  w^ere  married,  we  were  married  without  a  ceremonv, 
and  I  do  not  believe  in  having  him  circumcizcd.'  And  he  said 
to  me :    'IMinnie,  when  we  were  married,  we  were  married 


40  MARRIAGE 

without  a  ceremony.'  'I  said :  'As  an  Episcopalian,  we  believe 
in  ceremony.'  He  said:  'I  am  a  Jew,  and  your  sister  is  a  Gen- 
tile, and  it  is  not  necessary.  She  is  my  legal  wife  as  much  as 
though  we  were  married  by  a  rabbi.  She  had  a  ring  from  me.'  " 
This  ring  was  worn  by  the  complainant  after  the  marriage. 
From  the  time  of  the  removal  to  Wabash  avenue,  when  the 
parties  began  living  together,  tliey  resided  in  that  place  and 
Hyde  Park  and  other  localities  in  Chicago  openly  as  husband 
and  wife  until  his  desertion  of  her,  in  March,  i89i.  There  was 
disinterested  evidence  that  they  were  so  regarded,  and  that  she 
introduced  him  as  her  husband,  and  that  he  spoke  of  her  as  his 
wife,  and  she  testified  tliat  he  introduced  her  as  such.  [The 
court  reviews  tlie  testimony  and  continues:] 

Her  testimony  on  this  hearing  was  corroborated,  and  the  evi- 
dence was  sufficient  to  establish  the  relation  claimed.  It  is  true 
tliat  the  relation  between  the  parties  was  in  its  inception  mere- 
tricious and  not  matrimonial,  and  that  a  relation  so  commenced 
will  be  presumed  to  continue  of  the  same  character  in  the 
absence  of  proof  of  a  change  in  its  nature;  but  the  parties 
might  assume  legitimate  and  proper  relations,  and  should  be 
commended  for  doing  so,  and  it  is,  of  course,  admissible  to 
show  that  such  a  change  took  place.  In  this  case  there  was  an 
immediate  change  when  the  contract  was  made.  She  packed  up 
her  things,  and  they  moved  to  a  respectable  place,  and  after- 
wards lived  in  decent  and  respectable  places.  He  deserted  her, 
without  cause,  in  ]\Iarch,  1891.     *     *     * 

The  judgment  of  the  Appellate  Court  is  affirmed.  Judgment 
affirmed. 


HUTCHINSON  v.  HUTCHINSON. 

196  111.  432,  63  N.  E.  1023.    (1902.) 

Suit  by  Jennie  C.  Hutchinson  against  Charles  G.  Hutchinson 
for  separate  maintenance.  The  main  question  was  whether  the 
parties  were  married.  Decree  for  plaintiff.  Affirmed. 

BOGGS,  J.:  *  *  *  The  parties  were  never  united  in 
marriage  by  any  ceremonial  or  public  sokmnization  of  the 
marriage  rite  between  them.  The  finding  of  the  circuit  court 
was  that  they  came  together  and  agreed  by  a  present  contract 
to  accept  each  other  as  husband  and  wife,  and  thereafter  en- 
tered into  the  marriage  relation  and  lived  and  cohabited  to- 
gether as  husband  and  wife.    The  appellant  admitted  tlie  co- 


HUTCHINSON  V.  HUTCHINSON.  4I 

habitation  substantially  as  charged,  conceded  he  had  become 
the  father  of  four  children  born  to  the  appellee  as  the  result 
of  such  cohabitation,  but  denied  that  any  contract  of  marriage, 
in  verba  de  prcescnti  or  otherwise,  had  ever  been  entered  into 
between  them,  or  that  any  undivided  repute  of  such  marriage 
ever  existed,  but  insists  that  his  intercourse  with  her  was  purely 
meretricious  and  never  matrimonial.  The  relation  between  them 
at  its  inception  was  illicit.  It  began  in  the  year  1867,  while 
appellee,  a  young  girl,  was  a  servant  in  the  home  of  appellant's 
fatlier,  in  the  city  of  Chicago.  The  appellant,  then  a  young 
man,  made  his  home  with  his  father.  Appellee  became  preg- 
nant with  child,  the  fruit  of  their  illicit  intercourse.  She  testi- 
fied he  then  promised  to  make  her  his  wife,  and  fixed  a  time 
when  they  would  be  married.  He,  however,  went  away  from 
his  home,  and  she  went  to  the  home  of  her  sister,  and  instituted 
proceedings  in  bastardy  against  him,  which  he,  with  the  aid  of 
his  father,  settled  by  payment  to  her  of  $ioo  in  cash  and  giving 
to  her  nine  notes,  each  for  the  sum  of  $50,  one  of  which  fell 
due  each  year  thereafter  for  nine  years.  Appellee  was  delivered 
of  this  child  on  tlie  Stli  day  of  July,  1868.  The  child  was  a 
daughter,  and  was  given  the  mother's  name,  which  was  Jennie. 
Soon  after  the  birth  of  this  child  the  parents  resumed  their 
illicit  intercourse,  which  continued  until  the  year  1874,  when 
appellee  again  became  pregnant. 

The  appellee  testified  that  during  this  time  the  appellant  made 
repeated  promises  of  marriage,  and  that  when  it  became  evi- 
dent that  she  was  again  pregnant  with  another  child  of  which 
he  was  the  father  she  insisted  that  the  second  child  should  not 
be  born  out  of  lawful  wedlock;  tliat  he  consented,  and  that  a 
contract  of  marriage  was  verbally  entered  into  between  them 
in  the  month  of  April,  1875.  Her  testimony  as  to  this  contract 
of  marriage  was  as  follows :  "Why,  Mr.  Hutchinson  came  to 
see  me  one  evening.  I  felt  rather  blue  and  downhearted.  He 
asked  me  what  was  the  matter,  and  I  said,  'You  know  what  is 
the  matter.'  He  said,  T  do.'  He  says,  'Is  that  all  ?'  I  said,  'Yes.' 
He  looked  at  me  for  awhile,  and  he  says,  'Jennie,  are  you  wil- 
ling to  be  my  wife?'  I  said,  'Yes.'  He  took  a  ring  out  of  his 
pocket,  and  he  placed  it  on  my  finger,  and  he  said,  'I  now  take 
you  for  my  wife.'  I  said,  'I  now  take  you  for  my  husband.'  He 
put  his  arms  around  my  neck  and  kissed  me,  and  he  said,  'Are 
you  satisfied  with  that?'  I  said,  'Yes.'  He  says,  'From  this 
night  we  are  husband  and  wife.'  'Now,'  he  says,  'You  go  and 
get  a  flat,  and  wq  will  go  housekeeping.'  I  says,  'I  can  not  leave 
mother  just  now,  because  she  is  on  the  point  of  death.'  'Well,' 
he  says,  'as  soon  as  you  can.'   I  says,  'AH  right.'  "   Appellant 


42  MARRIAGE.  "■"' 

denied  these  statements  of  the  appellee,  but  the  chancellor,  who 
saw  them  both  and  heard  them  both  testify,  accepted  her  ver- 
sion as  being  true.  [The  court  reviews  the  evidence  showing 
tlie  cohabitation  of  the  parties  as  husband  and  wife  after  this 
contract  until  his  abandonment  of  her  in  1884.] 

Our  conclusion  is,  all  of  the  elements  necessary  to  a  valid 
common-law  marriage — a  contract  per  verba  de  prsesenti,  fol- 
lowed by  cohabitation  matrimonial  in  character  and  intent  and 
a  full  assumption  of  the  marriage  status  in  every  legal  aspect — 
were  established  by  the  proofs.  Port  v.  Port,  70  111.  484;  Elzas 
V.  Elzas,  171  111.  632,  49  N.  E.  717;  Cartwright  v.  McGown, 
121  111.  388,  12  N.  E.  737,  2  Am.  St.  105  ;  Laurence  v.  Laurence, 
164  111.  367,  45  N.  E.  1071 ;  Robinson  v.  Ruprecht,  191  111.  424, 
61  N.  E.  631.  The  abandonment  of  the  wife  and  children  was 
shown  to  be  without  just  cause. 

The  equities  were  with  the  appellee,  and  the  decree  is  emi- 
nently just  and  proper.  It  is  affirmed.  Decree  affirmed. 


LA  VERY  V.  HUTCHINSON. 

249  111.  86,  94  N.  E.  6.  (191 1.) 

Suit  by  Marion  J.  Lavery  against  Douglas  W.  Hutchinson, 
executor  of  the  estate  of  Charles  G.  Hutchinson,  deceased,  and 
others.  Plaintiff  claimed  certain  real  estate,  by  mesne  convey- 
ances, under  a  deed  by  said  decedent,  executed  by  him  as  a 
bachelor,  he  being,  however,  married  by  a  common-law  mar- 
riage. The  plaintiff  prayed  among  other  things  that  the  wid- 
ow's dower  right  in  the  premises  be  ascertained  and  adjusted. 
The  executor  contended  that  a  common-law  wife  was  not  en- 
titled to  dower.    Decree  for  plaintiff.  Affirmed. 

COOKE,  J. :  *  *  *  As  to  the  second  contention,  it  having 
been  determined  in  Hutchinson  v.  Hutchinson,  196  111.  432,  63 
N.  E.  1023,  that  the  relationship  of  husband  and  wife  existed 
between  Charles  G.  Hutchinson  and  Jennie  C.  Hutchinson  by 
virtue  of  a  private  contract  or  common-law  marriage,  it  only 
remains  to  be  determined  what  rights  a  wife  acquires  by  vir- 
tue of  such  a  marriage  in  this  state.  Under  the  laws  of  this 
state  as  they  existed  at  the  time  of  the  marriage  of  Charles  G. 
Hutchinson  and  "Jennie  C.  Hutchinson,  in  1875,  a  wife  by  a 
common-law  marriage  secured  all  the  rights  that  she  would 


LAVERY  V.   HUTCHINSON.  43 

have  secured  had  the  marriage  been  performed  in  the  method 
prescribed  by  statute. 

It  is  contended  that  in  England,  under  the  old  common  law, 
the  wife  by  common-law  marriage  did  not  have  tlie  right  of 
dower,  and  as  the  common  law  of  England  has  been  adopted 
as  tlie  law  of  Illinois,  except  where  modified  by  statute,  the 
wife  by  such  a  marriage  is  not  entitled  to  dower  in  this  state. 
It  is  true  that  in  England,  by  the  ancient  common  law,  the  wife 
by  a  common-law  marriage  was  not  entitled  to  dower.  That 
contract  of  marriage,  however,  was  binding  and  indissoluble. 
The  ecclesiastical  courts  of  England  had  exclusive  jurisdiction 
to  determine  the  question  of  the  legality  of  a  marriage,  and  as 
a  result  of  the  holdings  of  that  court  the  wife  of  such  a  mar- 
riage was  not  entitled  to  dower,  and  the  children  of  the  mar- 
riage were  illegitimate.  The  marriage  relation  so  entered  into 
was  thus  robbed  of  most  of  the  essential  incidents  which  at- 
tached to  it  when  entered  into  according  to  the  methods  pre- 
scribed by  the  ecclesiastical  law.  The  husband  or  wife  of  such 
a  marriage  could,  by  bringing  suit  in  the  spiritual  court,  com- 
pel the  other  to  solemnize  the  marriage  in  the  manner  pre- 
scribed by  that  tribunal,  and  the  evident  design  of  the  ecclesi- 
astical court  was  to  make  it  compulsory  upon  such  persons  as 
should  enter  into  a  private  contract  of  marriage  to  solemnize 
the  marriage  according  to  the  rules  and  regulations  prescribed 
by  the  church,    i  Scribner  on  Dower,  ch.  6. 

In  this  state,  there  being  a  separation  of  church  and  state,  we 
have  no  court  which  corresponds  to  the  old  spiritual  or  ecclesi- 
astical court  of  England,  and  we  have  not  adopted,  without 
modification,  the  rule  of  the  common  law  on  this  subject.  Ac- 
cordingly, we  have  held  that  the  children  of  a  common-law 
marriage  are  legitimate  and  are  the  legal  heirs  of  their  father. 
Robinson  v.  Ruprecht,  191  111.  424,  61  N.  E.  631.  Every  mar- 
riage in  this  state  is  a  marriage  for  all  purposes  and  is  attended 
with  all  the  civil  rights  and  obligations  which  the  law  confers 
and  imposes  upon  persons  who  enter  into  tlie  marriage  rela- 
tion. Jennie  C.  Hutchinson  is  entitled  to  dower  in  all  the  lands 
of  which  her  husband,  Charles  G.  Hutchinson,  was  seised  dur- 
ing coveture,  provided  she  had  not  released  or  barred  her  claim 
to  such  dower,  and,  as  he  conveyed  these  premises  during  cov- 
erture, the  wife  failing  to  join  in  the  conveyance,  she  is  entitled 
to  have  her  dower  assigned  in  the  same.     *     *     * 

We  find  no  error  in  the  decree  of  tlie  circuit  court,  and  tlie 
same  is  affirmed. 

Decree  affirmed. 


44  MARRIAGE. 

ESTATE  OF  GRIMM. 

131  Pa.  St.  199,  18  Atl.  1061,  6  L.  R.  A.  717,  17  Am.  St.  796. 

(1890.) 

Petition  of  ]\Iary  Grimm  for  allowance  as  the  widow  of 
Gottfried  Grimm,     Claim  disallowed.   Affirmed. 

PAXSON,  C.  J. :  This  case  is  peculiar.  The  appellant  filed 
her  petition  in  the  court  below,  claiming  to  be  the  widow  of 
Gottfried  Grimm,  and  asking  that  $300  worth  of  property  be 
appraised  and  set  apart  to  her  out  of  the  estate  of  said  dece- 
dent. The  court  below  disallowed  her  claim.  The  evidence 
upon  which  her  claim  to  widowhood  was  based  amounts  to 
this :  That  the  appellant  and  the  deceased  cohabited  together 
as  man  and  wife  for  one  week  prior  to  the  death  of  the  latter; 
that  the  marriage  ceremony  was  to  have  been  performed  the 
following  week,  but  that  it  was  prevented  by  the  sudden  death 
of  the  decedent.  The  appellant  was  sworn  and  examined  under 
objection,  and  her  testimony  was  as  follows:  "I  knew  Gott- 
fried Grimm  since  last  Christmas.  We  lived  together  as  man 
and  wife  a  week  before  he  died.  The  arrangement  between  us 
was  that  everything  that  was  his  should  be  mine,  and  my  chil- 
dren get  $300  each.  We  cohabited  as  man  and  wife.  He  ac- 
knowledged me  in  presence  of  others  as  his  wife.  The  cere- 
mony was  to  be  performed  the  next  week  after  he  died.  He 
was  to  have  everything  fixed  the  next  week,  and  we  were  to 
have  been  married  the  Tuesday  after  he  was  killed.  He  was 
to  get  the  license.  We  lived  together,  and  he  treated  me  as  a 
wife,  from  the  time  he  came  over." 

In  the  face  of  this  clear  statement  that  no  marriage  had  taken 
place,  the  mere  fact  that  Mr.  Grimm  acknowledged  her  as  his 
wife  in  the  presence  of  witnesses  has  little  significance.  Neither 
cohabitation  nor  reputation  of  marriage  is  marriage.  When 
conjoined,  they  are  evidences  from  which  a  presumption  of 
marriage  arises.  Yardley's  Estate,  75  Pa.  St.  207.  "The  pre- 
sumption of  marriage  arising  from  such  facts  may  always  be 
rebutted,  and  wholly  disappears  in  the  face  of  proof  that  no 
marriage  in  fact  had  taken  place.  Again,  the  cohabitation  was 
illicit  at  its  commencement.  It  may  not  have  been  meretricious, 
so  far  as  the  appellee  is  concerned.  There  is  evidence  to  show 
that  she  was  deceived,  but  it  was  clearly  illegal.  The  general 
rule  is  that  a  relation  shown  to  have  been  illicit  at  its  commence- 
ment *  *  *  raises  no  presumption  of  marriage."  Hunt's 
Appeal,  86  Pa.  St.  294. 


HANTZ  V.  SEALY.  45 

In  the  case  in  hand  the  relation  between  these  parties  was 
illicit  at  its  commencement,  and  known  to  be  such  by  the  par- 
ties. There  was  no  marriage  in  law  or  in  fact.  They  were  to 
have  been  married  the  next  week,  according  to  the  appellant's 
own  testimony.  That  it  was  prevented  by  tlie  death  of  Mr. 
Grimm,  if  the  fact  be  so,  was  a  misfortune  to  the  appellant. 
It  would  have  been  better  for  her  had  the  cohabitation  been 
later,  or  the  marriage  earlier.  The  decree  is  affirmed,  and  the 
appeal  dismissed,  at  the  costs  of  the  appellant. 


HANTZ  V.  SEALY. 

6  Binney  (Pa.)  405.    (1814.) 

Assumpsit  by  Mary  Sealy  against  Jacob  Hantz,  administra- 
tor of  Henry  Sealy,  deceased,  plaintiff's  late  husband,  to  re- 
cover the  amount  of  personal  estate  bequeathed  to  her  in  his 
will.  The  defendant  set  up,  among  other  defenses,  that  the 
plaintiff  v^'as  his  wife.  Henry  Sealy  died  in  1798,  and  the 
plaintiff  and  defendant  were  married  before  a  clergv-man  in 
1799.  They  cohaljlted  as  man  and  wife  and  held  themselves 
out  as  such  and  had  children.  At  the  time  of  their  marriage, 
however,  Hantz  had  another  wife  living,  from  whom  he  had 
been  separated  effectually  according  to  his  own  notion,  but 
with  no  eft'ect  in  law.  A  legal  divorce  was  obtained  after  tlie 
marriage  with  Mrs.  Sealy,  and  cohabitation  was  continued  as 
before.  Subsequently  Hantz  and  the  plaintiff  went  to  their 
counsel,  a  Mr.  Watts,  on  some  business  and  he  advised  them 
to  celebrate  a  new  marriage,  and  the  transaction  set  forth  in 
the  opinion  took  place.  The  court  below  held  that  this  did  not 
constitute  a  legal  marriage.  The  plaintiff  had  judgment  in  the 
trial  court,  which  was  reversed  on  other  grounds,  but  sustained 
in  so  far  as  the  questioa  of  the  validity  of  the  marriage  was 
concerned. 

TILGHMAN,  C.  J. :  *  *  *  The  defendant  pleaded  that 
he  was  married  to  the  plaintiff',  on  which  issue  was  joined,  and 
it  was  objected  that  the  judge  ought  to  have  directed  the  jury 
that  the  evidence  proved  the  marriage.  The  judge  laid  down 
the  law  correctly.  He  told  the  jury  that  marriage  was  a  civil 
contract,  which  might  be  completed  by  any  words  in  die  pres- 
ent time  without  regard  to  form.  He  told  them  also,  that  in 
his  opinion  the  words  proved  did  not  constitute  a  marriage,  and 


46  MAliEIAGE. 

in  this  I  agree  with  him.  The  plaintiff  and  defendant  came  to 
their  lawyer,  ]\Ir.  Watts,  on  business,  without  any  intention  of 
marrying.  They  had  long  lived  in  an  adulterous  intercourse, 
altliough  they  considered  themselves  as  lawfully  married.  In 
fact  they  had  entered  into  a  marriage  contract  which  was  void, 
because  the  defendant  had  a  former  wife  living,  from  whom  he 
had  been  separated  by  consent  but  not  legally.  Some  time 
before  the  parties  came  to  Air.  Watts,  a  legal  divorce  had  been 
pronounced,  and  Air.  Watts  advised  them  to  celebrate  a  new 
marriage.  The  defendant  said,  "I  take  you  (the  plaintiff)  for 
my  wife,"  and  the  plaintiff  being  told  that  if  she  would  say  tlie 
same  thing  the  marriage  would  be  complete,  answered,  "to  be 
sure  he  is  my  husband  good  enough."  Now  these  words  of 
the  woman  do  not  constitute  a  present  contract,  but  allude  to 
the  past  contract,  which  she  always  asserted  to  be  a  lawful 
marriage.  J\Ir.  Watts  advised  them  to  repeat  the  marriage  in 
a  solemn  manner  before  a  clerg}'man,  which  was  never  done. 
So  that  under  all  circumstances,  it  appears  to  me,  that  what 
was  done  was  too  slight  and  too  equivocal  to  establish  a  mar- 
riage. *  *  * 
Judgment  reversed. 


b.    Necessity  for  Cohabitation. 

BARNETT  v.  KIMAIELL. 

35Pa.  St.  13.   (1859-) 

Action  by  Emma  Kimmell  against  Theodore  Barnett  and 
David  Hamilton  on  a  bond.    Judgment  for  plaintiff.    Reversed. 

READ,  J.:  Theodore  Barnett,  a  minor,  with  his  uncle, 
David  Hamilton,  entered  into  a  bond  with  warrant  of  attorney 
to  Emma  Kimmell,  in  the  penal  sum  of  six  hundred  dollars, 
conditioned  for  the  payment  of  three  hundred  dollars  within 
sixty  days  from  the  9th  of  June,  1858,  with  stay  of  execution 
for  that  period,  and  on  the  14th  of  June  in  the  same  year,  judg- 
ment was  entered  upon  it.  At  the  same  time,  and  of  the  same 
date  with  the  bond,  another  paper  was  drawn  up  and  executed 
by  the  obligee,  and  delivered  to  Hamilton,  one  of  the  obligors, 
in  which,  after  reciting  the  giving  of  tlie  bond,  etc.,  it  was  pro- 
vided that,  if  within  sixty  days,  Barnett  proposed  to  marry 
Miss  Kimmell,  and  was  rejected  by  her,  or  on  the  other  hand, 
if  his  proposition  was  accepted,  and  he  married  her,  then  and 
from  thenceforth  the  bond  was  to  be  null  and  void.     On  the 


BARNETT  V.   KIMMELL.  47 

14th  July,  1858,  they  were  married  in  the  presence  of  witnesses, 
at  the  house  of  Miss  Kimmell's  sister,  where  she  resided,  by 
the  Rev.  Mr.  Babcock,  a  minister  of  the  Methodist  Episcopal 
Church.  Upon  a  rule  taken  on  the  13th  June,  1859,  on  the 
plaintiff,  to  show  cause  why  the  judgment  should  not  be  marked 
satisfied,  the  court  directed  an  issue  to  determine  whether  the 
conditions  expressed  had  been  complied  with,  which  was  tried, 
and  under  a  strong  charge  from  the  presiding  judge,  the  jury 
gave  a  verdict  for  the  plaintiff.  The  fact  of  marriage  was  not 
denied,  but  it  was  alleged,  that  it  was  accompanied  by  such  cir- 
cumstances of  fraud  as  to  render  it  null  and  void ;  or,  in  other 
words,  that  the  parties  were  not  married  at  all.  This  is  a  star- 
tling proposition,  and  requires  a  careful  examination,  as  it 
would  give  the  courts  the  power,  in  an  entirely  collateral  pro- 
ceeding, to  divorce  man  and  wife. 

Barnett,  by  the  obligation,  was  bound  to  make  the  offer  to 
marry.  This  was  imposed  upon  him  as  a  duty  by  the  plaintiff, 
and  one  which  she  knew  he  was  unwilling  to  perform.  His 
connections  were  opposed  to  the  match,  and  this  was  well 
known  to  the  plaintiff,  who  provided  for  it,  by  securing  the 
payment  to  her  of  three  hundred  dollars,  in  case  he  did  not 
give  her  the  opportunity,  within  a  limited  period,  of  accepting 
or  rejecting  him. 

The  plaintiff  declined  taking  any  smaller  sum,  and  the  de- 
fendant then  proposed  to  marry  her,  to  which  she  consented, 
and  they  were  legally  married  by  the  ceremony  of  the  i\Ieth- 
odist  Episcopal  Church.  Whatever  was  said  by  him  immedi- 
ately before  the  marriage  is  immaterial,  as  it  was  said  to  the 
plaintiff  herself,  who  was  fully  aware  of  his  feelings ;  and  the 
loose  declarations  made  three  months  after  his  marriage,  that 
he  would  not  live  with  her,  or  do  anything  for  her,  may  be 
classed  in  the  same  category. 

The  only  fact  proved  to  invalidate  the  marriage  was,  that 
since  it  took  place  he  has  not  lived  with  her.  This  clearly  does 
not  render  it  null  and  void  ab  initio,  or  a  state  of  divorce  would 
become  the  rule  instead  of  the  exception. 

The  act  of  the  8th  IMay,  1854,  empowers  the  courts  of  com- 
mon pleas  to  grant  divorces,  where  the  alleged  marriage  was 
procured  by  fraud,  force,  or  coercion,  and  has  not  been  subse- 
quently confirmed  by  the  acts  of  the  injured  party.  In  the 
present  case,  there  was  clearly  neither  force  nor  coercion,  and 
any  fraud  between  man  and  wife  should  only  be  tried  between 
those  parties  by  the  tribunal,  and  in  the  manner,  pointed  out 
by  tlie  act  of  assembly.  Mrs.  Barnett  has  never  applied  for  a 
divorce,  nor  did  she  ever  deny  or  repudiate  the  marriage,  until 


48  MARRIAGE. 

this  question  of  fraud  of  intention  was  raised,  on  the  trial  o£ 
this  issue,  a  year  and  more  after  the  event  itself.  It  is  dear, 
that  Theodore  Barnett  is  a  married  man,  and  if  he  married 
another  woman  during  the  hfe  of  his  present  wife,  he  would  be 
guilty  of  bigamy,  and  if  IMrs.  Barnett  did  a  similar  act,  she 
would  be  guilty  of  a  like  offense.     *     *     * 

The  conclusion,  then,  is,  that  these  parties  were  legally  mar- 
ried, and  never  having  been  divorced  for  any  cause  whatso- 
ever, the  stipulation  in  the  paper,  accompanying  the  bond,  has 
been  complied  witli;  and,  of  course,  that  the  judgment  entered 
on  it  should  have  been  marked  satisfied.  Such  a  result  is  abso- 
lutely necessary  to  protect  the  offspring,  whether  born  before 
or  after  the  marriage,  from  tlie  stain  and  disabilities  of  illegit- 
imacy.    *     *     * 

Judgment  reversed,  and  a  venire  de  novo  awarded. 


FRANKLIN  v.  FRANKLIN. 

154  Mass.  515,  28  N.  E.  681,  13  L.  R.  A.  843,  26  Am.  St.  266. 

(1891.) 

Libel  by  Hugh  Franklin  against  Delia  M.  Franklin  for  a 
divorce  on  the  ground  of  adultery.  Libellant  had  had  sexual 
intercourse  with  libellee  before  marriage  with  the  result  that 
she  became  pregnant.  She  instituted  bastardy  proceedings 
against  him,  and,  being  under  arrest,  he  married  her  "to  give 
the  child  a  name,"  and  have  it  born  in  wedlock,  it  being  agreed 
that  the  parties  should  never  live  together  as  husband  and  wife. 
Immediately  after  the  marriage  tlie  parties  separated.  Libel 
dismissed.  Libellant  alleged  exceptions.  Exceptions  sus- 
tained. 

KNOWLTON,  J. :  The  libelant  and  libelee  became  husband 
and  wife  by  virtue  of  a  lawful  marriage.  The  agreement  that 
they  would  not  live  together  had  no  effect  upon  the  marriage 
contract  entered  into  in  regular  form  in  the  presence  of  a  mag- 
istrate or  minister  authorized  to  solemnize  marriages.  It  is 
against  the  policy  of  the  law  that  the  validity  of  a  contract  of 
marriage  or  its  effect  upon  the  status  of  the  parties  should  be 
in  any  way  affected  by  their  preliminary  or  collateral  agree- 
ments. Barnett  v.  Kimmell,  35  Pa.  St.  13;  Harrod  v.  Harrod, 
I  Kay  &  J.  4,  16. 


PARTOX  V.    IIERVF.Y  49 

The  consummation  of  a  marriage  by  coition  is  not  necessary 
to  its  validity.  The  status  of  the  jiarties  is  fixed  in  law  when  the 
marriage  contract  is  entered  into  in  the  manner  prescribed  by 
the  statutes  in  relation  to  the  solemnization  of  marriages. 
Eaton  V.  Eaton,  122  ]\Iass.  276;  Dies  v,  W'inne,  7  Wend. 
(N.  Y.)  47;  Dumaresly  v.  Fishly,  3  A.  K.  Marsh.  (Ky.)  368; 
Patrick  v.  Patrick,  3  Phillim.  Ecc.  496;  Dalrymple  v.  Dal- 
rymple,  2  Hagg.  Const.  54.  The  libelant  is  not  guilty  of  such 
a  marital  wrong  as  will  prevent  him  from  obtaining  a  divorce 
on  the  ground  of  his  wife's  adultery.  The  parties  lived  apart 
by  mutual  consent,  and  on  the  facts  reported  neither  could  have 
obtained  a  divorce  from  the  other  on  the  ground  of  desertion. 
In  such  a  separation  there  was  no  desertion  within  the  meaning 
of  the  word  in  the  statutes  in  relation  to  divorce.  Lea  v.  Lea, 
8  Allen  (Mass.)  419;  Thompson  v.  Thompson,  i  Swab.  &  T. 
231 ;  Cooper  v.  Cooper,  17  Ivlich.  205.  Living  apart  by  agree- 
ment is  no  bar  to  a  suit  for  divorce  brought  by  either  against 
the  other  on  the  ground  of  adultery.  A  voluntary  separation  is 
not  a  license  to  commit  adultery;  and  it  has  uniformly  been 
held  that,  in  case  of  adultery  under  such  circumstances,  the 
innocent  party  may  have  a  remedy  against  the  other  in  a  suit 
for  a  divorce.  jNIorrall  v.  Morrall,  6  Prob.  Div.  98 ;  Beeby  v. 
Beeby,  i  Hagg.  Const.  140,  note;  IMortimer  v.  ]\Iortimer,  2 
Hagg.  Const.  310;  J.  G.  v.  H.  G.,  33  ^Id.  401;  Anderson  v. 
Anderson,  i  Edw.  Ch.  380. 

The  court  has  jurisdiction,  notwithstanding  that  tlie  parties 
have  never  lived  together  as  husband  and  wife  within  this  com- 
monwealth. The  continuous  residence  of  tlie  libelant  in  the 
commonwealth  for  more  than  five  years  next  preceding  the  fil- 
ing of  his  libel  brings  the  case  within  the  exception  stated  in 
Pub.  St.  ch.  146,  §  5.  On  the  facts  stated  in  the  bill  of  excep- 
tions the  divorce  should  have  been  granted,  and  the  entry  must 
be,  exceptions  sustained. 


c.    Statutory  Provisions. 

PARTON  v.  HERVEY. 
I  Gray  (■Mass.)  119.    (1854.) 

Habeas  corpus  by  Thomas  J.  Parton  in  behalf  of  Sarah  E. 
Parton,  alleged  to  be  the  lawful  wife  of  the  petitioner,  and  to 
be  deprived  of  her  liberty  and  unlawfully  detained  from  peti- 
tioner's  custody  by  respondent   Susan   Hervey,   her  motlier. 
4 — Cases  Dom.  Rel. 


50 


MARRIAGE. 


Respondent  claimed  that  tlie  marriage  between  the  petitioner 
and  said  Sarah  was  void  because  Sarah  was  only  thirteen  years 
old,  and  was  of  weak  and  disordered  intellect  and  incapable  of 
contracting  marriage,  and  that  the  petitioner,  witliout  the  re- 
spondent's consent  (the  father  being  dead)  had  clandestinely 
enticed  Sarah  from  her  mother's  custody  and  caused  the  mar- 
riage to  be  solemnized.  A  hearing  was  had  before  Bigelow,  J,, 
who,  after  consultation  with  the  other  judges,  drew  up  the  fol- 
lowing opinion : 

BIGELOW,  J. :  At  the  hearing  of  this  cause,  I  was  entirely 
satisfied  by  the  testimony,  that  the  marriage  of  the  petitioner 
with  tlie  daughter  of  the  respondent  was  not  procured  or  sol- 
emnized clandestinely,  or  through  fraud  and  deceit  practiced 
on  the  wife ;  but  that  she  freely  and  willingly  assented  thereto, 
without  undue  influence  or  persuasion;  that  she  was  not  of 
weak  or  impaired  intellect,  but  of  competent  understanding, 
and  of  the  ordinary  degree  of  intelligence  of  persons  of  her 
age ;  and  that  the  respondent  had  restrained  her  of  her  liberty 
against  her  will,  and  had  prevented  her  by  force  from  joining 
the  petitioner  and  living  with  him  as  his  wife. 

Upon  tliis  state  of  facts,  the  only  remaining  question  raised 
by  the  respondent  is  whether,  under  the  laws  of  this  common- 
wealth, a  marriage  by  a  female  infant  of  the  age  of  thirteen 
years  is  legal  and  valid,  if  had  and  solemnized  with  the  free 
assent  of  such  infant,  but  without  the  knowledge  or  consent  of 
her  parent  and  guardian.  This  presents  an  interesting  question, 
nearly  affecting  the  most  important  of  the  domestic  relations, 
upon' which,  being  anxious  to  arrive  at  a  satisfactory  result,  I 
have  taken  the  opinion  of  the  other  members  of  the  court. 

By  the  common  law,  both  in  England  and  in  this  country, 
the  age  of  consent  is  fixed  at  twelve  in  females  and  fourteen 
in  males.  Contracts  of  marriage  between  infants,  being  both 
of  the  age  of  consent,  if  executed,  are  as  binding  as  if  made  by 
adults.  Co.  Lit.  79  b.  Reeve  Dom.  Rel.  236,  237.  20  Amer. 
Jurist,  275.  2  Kent  Com.  (6th  ed.)  78.  Pool  v.  Pratt,  i  Chip. 
Vt.  254.  The  Governor  v.  Rector,  10  Humph.  (Tenn.)  61. 
This  rule,  originally  engrafted  into  the  common  from  the  civil 
law,  (i  Bl.  Com.  436;  Macph.  on  Inf.  168,  169,)  is  undovibtedly 
an  exception  to  the  general  principles  regulating  the  contracts 
of  infants,  and  might,  at  first,  seem  to  disregard  the  protection 
and  restraint  with  which  the  law  seeks  to  surround  and  guard 
the  inexperience  and  imprudence  of  infancy.  But  in  regulat- 
ing the  intercourse  of  the  sexes  by  giving  its  highest  sanctions 
to  the  contract  of  marriage,  and  rendering  it,  as  far  as  possible, 


PARTON  V.   HERVEY.  5 1 

inviolable,  the  law  looks,  beyond  the  welfare  of  the  individual 
and  a  class,  to  the  general  interests  of  society;  and  seeks,  in 
the  exercise  of  a  wise  and  sound  policy,  to  chasten  and  refine 
this  intercourse,  and  to  guard  against  the  manifold  evils  which 
would  result  from  illicit  cohabitation.  With  this  view,  in  order 
to  prevent  fraudulent  marriages,  seduction  and  illegitimacy,  the 
common  law  has  fixed  that  ]>eriod  in  life,  when  the  sexual  pas- 
sions are  usually  first  developed,  as  the  one,  when  infants  are 
deemed  to  be  of  the  age  of  consent,  and  capable  of  entering 
into  the  contract  of  marriage. 

It  is  urged,  that  this  rule  of  law  is  not  in  force  in  this  com- 
monwealth, because,  by  our  statutes,  ministers  of  the  gospel 
and  magistrates  have  always  been  prohibited,  under  a  heavy 
penalty,  from  solemnizing  marriages  of  males  under  twenty-one 
years  of  age,  or  of  females  under  eighteen  years  of  age,  with- 
out the  consent  of  their  parents  or  guardians.  St.  7  \Vm.  3, 
Rev.  Sts.  ch.  75,  §§  15,  19.  St.  1853,  ch.  335,  §  i. 
The  effect  of  these  and  similar  statutes  is  not  to 
render  such  marriages,  when  duly  solemnized,  void ; 
although  tlie  statute  provisions  have  not  been  complied  with. 
They  are  intended  as  directory  only  upon  ministers  and  mag- 
istrates, and  to  prevent,  as  far  as  possible,  by  penalties  on  them, 
the  solemnization  of  marriages,  when  the  prescribed  conditions 
and  formalities  have  not  been  fulfilled.  In  the  absence  of  any 
provision,  declaring  marriages,  not  celebrated  in  a  prescribed 
manner,  or  between  parties  of  certain  ages,  absolutely  void,  it 
held  that  all  marriages,  regularly  made  according  to  the  com- 
mon law,  are  valid  and  binding,  although  had  in  violation  of  the 
specific  regulations  imposed  by  statute.  2  Kent  Com.  90, 
91.  2  Greenl.  Ev.  §  460.  Milford  v.  Worcester,  7  Mass.  48. 
Londonderry  v.  Chester,  2  N.  H.  268.  Hantz  v.  Sealy,  6  Einn. 
(Pa.)  405.  And  such  is  the  effect  given  to  similar  statutes  in 
England.  The  King  v.  Birmingham,  8  B.  &  C.  29.  Catterall  v. 
Sweetman,  i  Robertson,  304.  In  the  language  of  Parsons, 
C.  J. :  "When  a  justice  or  minister  shall  solemnize  a  marriage 
between  parties,  who  may  lawfully  marry,  although  without 
the  consent  of  the  parents  or  guardians,  such  marriage  would 
unquestionably  be  lawful,  although  the  officer  would  incur  tlie 
penalty  for  a  breach  of  his  duty."   7  ]\Iass.  54,  55. 

That  the  age  of  consent,  as  fixed  by  the  common  law,  is  the 
rule  in  force  in  this  commonwealth,  is  strongly  implied  from 
Rev.  Sts.,  ch,  76,  §  2,  by  which  it  is  enacted,  that  "a  marriage, 
solemnized  when  either  of  the  parties  was  under  age  of  con- 
sent, if  they  shall  separate  during  such  nonage,  and  shall  not 
cohabit  together  afterwards,  shall  be  deemed  void,  without  any 


32  MARRIAGE. 


decree  of  divorce."  There  being  no  rule  established  by  statute, 
fixing  the  age  of  consent,  it  is  clear  that  the  age  of  consent 
referred  to  in  this  section  is  that  fixed  by  the  common  law. 
Such  was  manifestly  the  opinion  of  the  learned  commissioners, 
who  revised  the  statutes  of  the  commonwealth  ;  and  with  a  view 
to  change  the  law  in  this  particular,  they  reported  a  provision 
fixing  the  age  of  consent  at  seventeen  in  males  and  fourteen  in 
females.  Report  of  Commissioners  on  Rev.  Stat.,  ch.  75,  §  i, 
and  note.  This  provision  was  stricken  out  by  the  legislature,  thus 
affording  strong  proof  that  the  rule  of  the  common  law  was 
well  understood,  and  required  no  change  to  adapt  it  to  our  con- 
dition and  state  of  society. 

Under  these  circumstances,  we  are  all  of  opinion,  that  the 
marriage  between  these  parties,  both  being  of  the  age  of  con- 
sent, was  valid  and  binding,  although  had  and  solemnized  with- 
out the  consent  of  the  parent  and  guardian  of  the  female ;  and 
there  being  sufficient  proof  of  restraint  of  the  wife  by  her 
mother,  the  respondent,  the  order  must  be,  tliat  she  be  dis- 
charged therefrom. 


STATE  v.  BITTICK. 

103  Mo.  183,  15  S.  W.  325,  II  L.  R.  A.  587,  23  Am.  St.  869. 

(1891.) 

THOAIAS,  J. :  The  defendant  was  indicted  and  convicted  in 
the  Callaway  Circuit  Court  for  taking  away  Bertha  A.  L.  Bice, 
a  female  under  18  years  of  age,  from  Sarah  Rhine,  her  mother, 
who  had  the  legal  charge  of  her,  for  the  purpose  of  concubin- 
age, and  was  sentenced  to  imprisonment  in  the  penitentiary  for 
a  term  of  two  years.  From  this  sentence  he  has  taken  his  ap- 
peal to  this  court.  The  record  shows  that  the  defendant  was  a 
widower,  with  six  children,  and  according  to  the  finding  of  the 
jury  Bertha  A.  L.  Bice  was  under  18  years  of  age.  She  lived 
with  her  mother,  who  was  a  widow.  The  mother  testified  that 
the  girl  was  about  16  years  old.  The  girl  worked  at  defend- 
ant's, and  it  seems  fell  in  love  with  him,  and  she  and  he  desired 
to  marry,  but,  the  mother  refusing  to  give  her  consent,  they 
were  unable  to  obtain  a  marriage  license. 

Determined,  however,  not  to  be  thwarted  in  their  designs  and 
wishes,  they  got  together,  and  F.  L.  ]\Iinor  testified  as  to  what 
then  occurred  as  follows:  "Know  Mrs.  Rhine  and  Bertie  Bit- 
tick,  the  wife  of  defendant.  Bertie  and  defendant  were  mar- 
ried at  mv  house  about  the  i6th  of  last  April.   Were  married 


STATE  V.   BITTICK.  53 

publicly,  in  the  presence  of  over  twenty  persons.  They  married 
themselves.  There  was  no  minister  or  officer  present.  They 
stood  up  in  the  parlor  floor,  and  mutually  agreed  and  promised 
to  marry  each  other.  They  publicly  made  known  themselves  as 
man  and  wife.  Lived,  cohabited,  and  held  themselves  out  to  the 
world  as  man  and  wife.  They  were  known  and  recognized  by 
the  public  as  man  and  wife.  They,  at  the  time  of  said  marriage, 
signed  and  executed  a  written  marriage  contract,  which  was 
attested  by  myself  and  a  number  of  others."  Witness  identified 
the  following  contract  as  made  by  the  parties,  and  witnessed  by 
him  and  otliers :  ]\Iarriage  Contract.  "We,  Hiram  J.  Bittick 
and  Bertie  A.  L.  Bice,  enter  into  a  solemn  vow  to  live  together 
so  long  as  we  may  both  live,  to  live  together  as  man  and  wife, 
in  the  presence  of  our  God  and  the  undersigned  witnesses,  at 
tlie  residence  of  F.  L.  IMinor,  in  Cote  Sans  Dessein  Township, 
County  of  Callaway,  State  of  Missouri,  on  this  i6th  dav  of 
April,  1890.  H.  J.  Bittick.  Bertha  A.  L.  Bice.  Witness:  F.  L. 
Minor,  W.  A.  Johnson.  Fannie  A.  Johnson.  Jane  T.  Minor. 
Agnes_  Bittick.  Olivia  Riefstieck.  Rose  Riefstieck.  William 
Riefstieck.  Herbert  Johnson.  The  above  and  foregoing  instru- 
ment of  writing  was  filed  for  record,  April  29,  1890,  at  10:20 
a.  m.,  and  duly  recorded.  George  W.  Penn,  Recorder.  By  P.  B. 
Bailey,  Deputy  Recorder." 

This  is  asufficient  statement  of  the  facts  of  tliis  case  to  pre- 
sent the  points  involved.  Upon  the  facts  thus  given  the  court 
gave  ten  instructions  at  the  instance  of  the  state,  and  seventeen 
at  the  instance  of  defendant,  and  yet  defendant  complains  that 
the  court  did  not  fully  instruct  the  jury.  The  view  we  have 
taken  of  the  case  renders  it  unnecessary  "to  refer  to  the  instruc- 
tions specifically. 

Suffice  to  say  that  the  court  told  the  jury  that  the  marriage 
ceremony  and  contract  as  given  here  did  not  constitute  a  mar- 
riage, and  therefore  that  defendant  could  not  escape  the  penalty 
of  the  statute  under  which  he  was  indicted,  on  the  ground  that 
he  had  made  Bertha  his  wife.  The  defendant  contends  that  this 
was  error,  and  that  this  ceremony  and  contract  did  constitute 
a  valid  marriage,  and  therefore  that  defendant  and  Bertha 
were,  after  April  i6,  1890,  man  and  wife,  and  had  a  right  to 
cohabit  together  as  such,  and  this  is  the  point  to  be  decided. 
Owing  to  the  importance  of  the  question,  involving,  as  it  does, 
the  best  interests  of  society  and  the  preservation  of  the  home 
and  family,  the  basis  of  all  good  society,  we  gave  it  a  very 
careful  consideration.  This  and  kindred  questions  have  been 
before  the  American  and  English  courts  so  often,  and  the  sub- 
ject has  been  so  frequently  and  thoroughly  discussed  by  tlie 


54 


MARRIAGE. 


courts  and  text-writers,  that  we  deem  it  unnecessary,  and  even 
a  profitless  task,  to  review  the  authorities  again  in  this  case. 

Ever  since  1805  we  have  had  statutes  in  this  state  regulating 
the  marriage  ceremony,  and  providing  who  might  solemnize  it. 
These  statutes  remained,  in  substance,  the  same  till  1881,  when 
for  the  first  time  an  act  requiring  a  license  to  marry  was  passed. 
Prior  to  tliis  change  the  question  as  to  whether  the  statutes  of 
this  state  on  the  subject  superseded  the  common  law,  and  ren- 
dered a  marriage  not  in  conformity  with  the  statutory  require- 
ments void,  was  before  this  court  in  1857,  in  State  v.  McDonald, 
25  Mo.  176;  in  1876,  in  Cargile  v.  Wood,  63  Mo.  501 ;  in  1877, 
in  Dyer  v.  Brannock,  66  Mo.  391 ;  and  again  in  1883,  in  State 
V.  Gonce,  79  ]\Io.  600. 

Two  propositions  are  conclusively  settled  in  this  state  by  the 
cases  above  cited :  ( i )  That  prior  to  the  adoption  of  the  statute 
in  1881,  requiring  a  marriage  license  before  any  one  authorized 
by  the  statute  could  perform  the  ceremony,  a  marriage  accord- 
ing to  the  common  law  was  valid  in  this  state,  though  not  in 
conformity  to  the  statute.    (2)  In  the  interpretation  of  statutes 
on  the  subject  of  marriage,  a  common-law  marriage  is  good 
though  not  in  conformity  to  the  statutory  requirements,  unless 
the  statutes  contain  express  words  of  nullity.  And  we  may  add 
that  this  rule  of  interpretation  has  been  adopted  in  nearly  all 
the  American  states.    See  Stew.  Mar.  &  Div.,  §  53,  where  the 
authorities  are  collated ;  and  also  i  Bish.  Mar.  &  Div.  §  283 ;  as 
well  as  the  cases  cited  in  Dyer  v.  Brannock,  supra.  These  two 
propositions  being  settled  even  beyond  debate,  let  us  see  if  it 
was  intended  by  the  statute  of  1881  to  change  or  modify  them, 
or  either  of  them.  The  first  section  of  this  act  (Sess.  Acts  1881, 
p.  161)  provides  that,  "previous  to  any  marriage  in  this  state, 
a  license  for  that  purpose  shall  be  obtained  from  the  officer 
herein  authorized  to  issue  the  same."     The  remaining  provi- 
sions of  the  act  are  substantially  as  they  had  existed  prior  to  its 
enactment,  the  changes  made  being  such  only  as  to  make  a 
statutory  marriage  conform  to  the  theory  of  the  license  system. 
And  the  statute  of  1881  was,  in  all  essential  particulars,  in  force 
in  1890,  when  defendant  and  Bertha  were  married,  as  they 
claim.     By  other  sections  of  this  act,  the  officer  authorized  to 
issue  marriage  licenses  was  prohibited  from  issuing  a  license 
authorizing  the  marriage  of  any  male  under  21  or  female  under 
the  age  of  18  years,  except  with  the  consent  of  his  or  her  father, 
or,  if  he  is  dead,  etc.,  his  or  her  mother,  etc.,  and  imposing 
penalties  upon  those  who  issue  licenses  or  solemnize  the  mar- 
riage ceremony  contrary  to  the  statutory  requirements.     But 


STATE  V.  BITTICK.  55 

there  are  no  words  in  the  act  declaring  a  marriage  not  in  con- 
formity to  the  statute  null  and  ^■oid.  Plence,  applying  the  rule 
of  interpretation  of  marriage  statutes  given  above,  to  the  stat- 
ute in  force  on  April  16,  1890,  we  see  that,  if  the  marriage  of 
defendant  and  Bertha  was  good  at  common  law,  it  was  not 
made  null  and  void  by  the  statute,  and  is  therefore  valid. 

The  only  question  remaining,  therefore,  for  us  to  determine, 
is,  did  the  contract  in  this  case  constitute  a  valid  common-law 
marriage  ?  We  think  it  did.  Our  statute  defines  marriage  thus : 
"Marriage  is  considered  in  law  as  a  civil  contract,  to  which  the 
consent  of  the  parties  capable  in  law  of  contracting  is  essen- 
tial." While  it  is  here  declared  to  be  a  civil  contract,  it  is  almost 
universally  held  to  be  something  more  than  an  ordinary  con- 
tract. Marriage  is  a  status,  created  by  contract,  and  we  formu- 
late the  definition  of  it  as  follows :  ]\Iarriage  is  the  civil  status 
of  one  man  and  one  woman  cajiable  of  contracting,  united  by 
contract  and  mutual  consent  for  life,  for  the  discharge,  to  each 
other  and  to  the  community,  of  the  duties  legally  incumbent  on 
tliose  whose  association  is  founded  on  the  distinction  of  sex. 
The  contract  of  marriage  in  this  case  comes  up  to  every  re- 
quirement of  this  definition.  It  created  the  relation  of  husband 
and  wife  between  defendant  and  Bertha,  so  long  as  they  both 
should  live.  In  form,  then,  the  contract  was  good,  and  con- 
stituted a  valid  marriage  at  common  law.  i  Bish.  Mar.  &  Div. 
§§  2,  3.  This  relation  between  them  is  indissoluble,  except  by 
death  or  a  decree  of  court.  It  is  scarcely  necessary  for  us  to 
cite  authorities  that  at  common  law  a  female  of  the  age  of  12 
and  a  male  of  14  were  capable  of  entering  into  a  contract  of 
rnarriage.  Id.  §  145.  There  is  no  question  that  the  parties  in 
this  instance  were  capable  of  assuming  the  marital  relation  by 
contract,  at  common  law.  The  defendant  having  entered  into 
a  valid  marriage  with  Bertha  A.  L.  Bice,  and  thus  made  her  his 
wife,  he  was  not  guilty  of  the  crime  of  taking  her  away  from 
her  mother  for  the  purpose  of  concubinage. 

We  will  add  that  we  have  come  to  this  conclusion  very  re- 
luctantly, for  we  feel  that  the  best  interests  of  men  and  women, 
and  children,  of  society,  of  the  family,  and  the  home  require 
that  parties  should  not  "marry  themselves,"  and  all  marriages 
should  be  entered  into  publicly  before  those  authorized  bv  law 
to  solemnize  them,  and  put  upon  the  public  records.  But  we 
are  not  here  to  make  the  law  conform  to  what  we  think  it  ought 
to  be,  but  to  declare  it  as  it  is.  As  late  as  1877,  this  court,  after 
a  full  review  of  all  the  authorities,  declared  that  a  statute  pre- 
scribing the  formalities  to  be  observed  in  the  solemnization  of 


50  MARRIAGE. 

marriage  did  not  render  marriages  entered  into  according  to 
the  common  law,  but  not  in  conformity  to  such  formaUties, 
void,  unless  the  statute  itself  declared  them  null,  and  that  this 
rule  of  interpretation  had  been  the  rule  since  1857;  and  yet, 
when  the  statute  of  1881  was  enacted,  the  words  of  nullity  of 
all  marriages  not  iw  conformity  to  the  statute  were  omitted.  If 
the  law-making  power  had  desired  to  make  common-law  mar- 
riages void,  all  that  was  required  was  to  add  to  the  first  section 
of  the  act  of  1881  these  words,  "and  all  marriages  entered  into 
without  a  license  shall  be  void."  This  was  not  done,  and  hence 
we  must  conclusively  presume  that  it  was  intended  that  that  act 
should  be  interpreted  by  the  rule  then  in  force,  as  declared  by 
this  court.  The  legislature  has  the  power  to  add  these  words  at 
any  time,  but  this  court  has  no  such  authority.  The  judgment 
of  the  lower  court  is  reversed,  and  defendant  discharged. 
All  concur. 


HAWKINS  V.  HAWKINS. 
142  Ala.  571,  38  So.  640,  no  Am.  St.  53.    (1905.) 

Suit  by  Milton  Hawkins  against  Bella  Hawkins  to  annul 
their  marriage.  Decree  overruling  motion  to  dismiss  bill  and 
demurrer  to  bill.  Affirmed. 

IMcCLELLAN,  C.  J. :  Bill  filed  by  Milton  Hawkins  against 
Bella  Hawkins.  Its  averments  present  this  case :  Milton  was 
under  arrest  and  about  to  be  tried  preliminarily  on  the  charge 
of  having  seduced  Bella.  He  was  innocent  of  the  charge.  He 
was  young,  a  mere  boy,  and  inexperienced.  It  was  proposed 
to  him  to  dismiss  the  prosecution  and  set  him  at  liberty  if  he 
would  marry  the  girl.  He  was  advised  by  the  magistrate  be- 
fore whom  he  had  been  brought,  and  his  trial  was  to  be  had, 
that  it  would  be  best  for  him  to  do  this.  Thus  environed  and 
pressed  and  advised,  he  consented  to  marry.  Thereupon  a  cere- 
mony of  marriage  was  performed  between  him  and  the  girl 
by  said  magistrate.  This  ceremony  was  had  under  the  sup- 
posed authorization  of  a  paper  in  form  a  marriage  license,  but 
which  had  no  legal  status  as  such ;  having  been  in  part  issued 
by  the  magistrate  himself,  by  filling  in  the  names  and  date  of 


HAWKINS  V.   HAWKINS.  57 

a  license  form  which  had  been  signed  in  blank  by  the  judge  of 
probate.  There  has  never  been  any  cohabitation  of  the  parties 
as  man  and  wife,  nor  sexual  intercourse  since,  or  even  before, 
the  ceremony.  Leaving  out  of  view  the  duress,  this  was  no 
marriage.  The  formal  apparent  solemnization  was  without 
license,  and  hence  inefficacious  as  a  statutory  marriage.  And 
the  formal  consent  to  be  man  and  wife  was  not  consummated 
into  tliat  relation  under  tlic  common  law  by  cohabitation.  Ash- 
ley V.  State,  109  Ala.  48,  19  South.  917. 

We  are  of  opinion  that  the  chancery  court — of  course,  wholly 
without  reference  to  its  statutory  jurisdiction  to  grant  divorces 
— has  power  to  declare  the  nullity  of  the  performance  as  a 
marriage.  Had  there  been  a  valid  license,  the  jurisdiction  of 
chancery  to  annul  the  marriage  under  it  is  undoubted;  being, 
indeed,  the  general  jurisdiction  of  that  court  to  annul  contracts 
into  which  the  complaining  party  has  been  coerced  to  enter.  So, 
too,  this  jurisdiction  would  exist  to  that  end,  had  the  complain- 
ant, moved  thereto  by  the  contract  he  had  made  under  duress, 
consummated  the  agreement  by  cohabitation;  assuming  there 
was  no  statutory  marriage.  And  though  there  was  no  license 
and  has  been  no  consummation,  tlie  contract  of  marriage — the 
undertaking  to  cohabit — is  still  extant,  so  to  speak,  and  nomi- 
nally subsisting  and  binding.  The  marriage  might  yet  be  con- 
summated, and  such  consummation  might  well  result  from  the 
moral  or  supposed  legal  constraint  of  the  contract,  which  itself 
was  the  product  of  duress  per  minas. 

Under  these  circumstances,  the  complainant,  we  think,  is  en- 
titled to  invoke  the  jurisdiction  of  chancery  to  annul  contracts 
induced  by  duress,  to  a  declaration  of  the  nullity  of  this  con- 
tract and  of  the  consequent  marriage,  though  only  ceremonial. 
Without  resting  the  jurisdiction  at  all  upon  that  consideration, 
the  fact  that  the  license  is  regular  and  valid  on  its  face,  and 
the  fact  that  a  formal  ceremony  had  been,  with  apparent  au- 
thority, certified  to  the  judge  of  probate,  demonstrate  the  prac- 
tical importance  to  the  complainant  of  the  relief  he  seeks.  The 
jurisdiction  attaching  on  the  ground  of  duress,  "the  fitness  and 
propriety  of  a  judicial  decision  pronouncing  the  nullity  of  such 
a  marriage  [though  no  marriage  in  legal  contemplation]  is  very 
apparent,  and  is  equally  conclusive  to  good  order  and  decorum 
and  to  the  peace  and  conscience  of  the  party." 

The  bill  has  equity.  It  is  not  open  to  the  objections  taken  by 
the  demurrer.  The  decree  of  tlie  city  court  overruling  the  mo- 
tion to  dismiss  the  bill  for  want  of  equity  and  the  demurrer 
must  be  affirmed. 


58  MARRIAGE. 


d.  Marriage  of  Persons  Under  Disability  of  Prior  Marriage. 


SCHUCHART  v.  SCHUCHART. 

61  Kans.  597,  60  Pac.  311,  50  L.  R.  A.  180,  78  Am.  St.  342. 

(1900.) 

Action  by  Thomas  Schuchart  against  Agnes  Schuchart  to 
recover  possession  of  real  estate  claimed  by  defendant  as  tlie 
widow  of  Jacob  Schuchart.  Judgment  for  defendant.  Affirmed. 

JOHNSTON,  J. :  The  controversy  in  this  case  arises  over 
the  title  to  a  quarter  section  of  land  in  Washington  County, 
claimed  by  Thomas  Schuchart  as  the  son  and  only  heir  of  Jacob 
Schuchart,  who  died  in  December,  1896,  while  the  defendant 
claims  the  property  on  the  ground  that  she  was  the  lawful  wife, 
and  is  now  the  widow,  of  Jacob  Schuchart,  deceased.  The  deci- 
sion of  the  case  turns  on  the  point  whether  Agnes  was  the  wife 
■of  Jacob  at  the  death  of  the  latter,  and  this  question  was  deter- 
mined in  the  affirmative  by  the  jury  in  the  trial  court. 
^  There  is  no  dispute  but  that  Jacob  was  married  early  in  life 
to  the  mother  of  the  plaintiff,  but  it  appears  that  she  died  in 
1891,  leaving  him  free  to  contract  the  marriage  relation  with 
another.  He  undertook  to  enter  into  the  marriage  relation  with 
Agnes,  who,  it  appears,  had  been  formerly  married  to  one  Por- 
teous.  There  had  been  a  separation  between  them,  and  she  had 
not  heard  from  or  of  Porteous  for  about  seventeen  years  prior 
to  the  time  she  assumed  the  marriage  relation  with  Schuchart. 
Lest  he  might  be  still  alive,  she  procured  a  divorce  from  Por- 
teous on  September  10,  1894,  in  Riley  County,  where  she  then 
resided.  Within  three  months  thereafter,  and  before  the  decree 
of  divorce  became  operative  and  final,  she  and  Jacob  Schu- 
chart procured  a  license  to  marry,  and  a  marriage  ceremony  in 
due  form  was  performed  by  the  probate  judge  of  Washington 
County. 

The  parties  overlooked  or  were  unmindful  of  the  statute 
providing  that  the  marriage  relation  is  not  effectually  dis- 
solved until  the  expiration  of  six  months  from  the  date  of  the 
decree  of  divorce.  The  attempted  marriage  was,  therefore,  a 
nullity.  But  the  contention  of  the  defendant  is  that,  having 
learned  of  the  limitation  of  the  statute,  and  of  tlie  invaHdity  of 


SCHUCIIART  V.    SCHUCHART.  59 

the  marriajre  ceremony,  they  then  determined  to  live  together 
as  man  and  wife  without  further  ceremony,  and  thereafter  and 
in  good  faith  did  hve  for  years  in  that  relation.  Was  there  a 
consensual  or  common-law  marriage?  The  jury  found  that 
there  was,  and  the  proof  abundantly  sustains  the  finding.  It 
shows  that  the  marital  relation  was  honestly,  but  illegally,  as- 
sumed, in  the  first  instance.  Agnes  was  then  under  a  disability, 
it  is  true,  but,  so  far  as  the  record  shows,  both  of  them  \vere 
innocent  of  an  intent  to  transgress  the  law  or  to  commit  a 
wrong.  When  they  learned  of  the  disability,  and  that  it  had 
been  removed,  the  matter  of  another  ceremony  was  considered 
and  discussed  between  them.  He  expressed  a  willingness  to 
have  a  repetition  of  the  ceremony  if  she  desired  that  it  should 
be  done,  but  stated  that  he  saw  no  necessity  for  it.  She  did 
not  think  it  was  necessary,  and  both  then  declared  that  "we  are 
man  and  wife,  and  will  continue  to  be  man  and  wife"_;  and  it 
appears  that  thereafter  they  cohabited  and  otherwise  lived  to- 
gether as  such.  They  publicly  acknowledged  each  other  as  hus- 
band and  wife,  assumed  marriage  rights,  duties,  and  obliga- 
tions, and  have  generally  been  reputed  to  be  husband  and  wife 
in  the  community.  The  plaintiff  even  visited  with  and  treated 
them  as  occupying  the  marriage  relation,  and  so  regarded  them, 
until  he  heard  of  the  statutory  disability  which  existed  when 
the  marriage  ceremony  was  performed. 

The  plaintiff  contends  that,  as  the  relation  between  the  par- 
ties in  the  first  instance  was  illicit,  Uie  presumption  is  that  the 
illicit  relationship  continued  after  the  statutory  disability  had 
been  removed.  If  they  had  entered  into  a  mere  meretricious 
relation,  with  an  arrangement  that  the  illicit  cohabitation  should 
be  abandoned  at  the  will  of  either,  tliere  would  be  room  for  a 
presumption  that  the  illicit  relationship  continued  after  tlie  re- 
moval of  the  disability.  It  is  the  policy  of  the  law,  however,  to 
uphold  marriage  contracts,  and  to  sustain  marriage,  where  the 
parties  in  good  faith  intend  to  assume  the  marriage  relation, 
and  thereafter  live  togetlier  as  husband  and  wife. 

To  establish  the  plaintiff's  claim,  he  necessarily  asserts  the 
wrong  of  his  father ;  that  the  connection  was  not  formed  with 
pure  motives,  nor  entered  into  with  tlie  intention  of  creating 
the  relation  of  husband  and  wife,  but  was  merely  formed  for 
carnal  commerce.  As  has  been  said,  the  law  presumes  moral- 
ity, and  not  immorality;  marriage,  and  not  concubinage;  legiti- 
macy, and  not  bastardy.  Hynes  v.  McDermott,  91  N.  _Y.  451. 
Bishop,  in  treating  of  marriages  formally  entered  into  in  good 
faitli  where  there  was  an  impediment  to  the  marriage,  says: 


6o  MARRIAGE. 

"If  the  parties  desire  marriage,  and  do  what  they  can  to  render 
their  union  matrimonial,  though  one  of  them  is  under  a  dis- 
abihty, — as  where  there  is  a  prior  marriage  undissolved, — their 
cohabitation,  thus  matrimonially  meant,  will,  in  matter  of  law, 
make  tliem  husband  and  wife  from  the  moment  when  the  dis- 
ability is  removed."  i  Bish.  ]\Iar.  &  Div.  §§  970,  975,  979; 
Teter  v.  Teter,  loi  Ind.  129;  Poole  v.  People  (Colo.  Sup.)  52 
Pac.  1025. 

The  marriage  in  this  case,  as  we  have  seen,  was  formally 
celebrated,  and,  as  every  presumption  of  the  law  is  in  favor  of 
matrimony,  the  burden  is  on  the  plaintiff  to  show  illegality, 
even  though  it  may  involve  tlie  proving  of  a  negative.  To  estab- 
lish his  case,  tlie  plaintiff  was,  therefore,  required  to  prove  not 
only  that  Porteous  was  living,  but  that  the  marriage  relation  of 
the  defendant  with  him  had  not  been  dissolved  by  divorce.  He 
did  show  that  Porteous  was  still  living,  but  failed  to  show  that 
a  divorce  had  not  been  granted  to  Porteous  from  her.  Boulden 
v.  Mclntire  (Ind.  Sup.)  21  N.  E.  445;  Klein  v.  Laudman,  29 
Mo.  259;  In  re  Rash's  Estate  (Mont.)  53  Pac.  312. 

We  need  not  rely  on  this  presumption,  however,  and  prefer 
to  place  our  decision  on  the  ground  that  there  was  a  consensual 
marriage.  Everything  in  the  evidence  indicates  purity  of  pur- 
pose and  good  faith  in  forming  the  relation,  and  after  the  im- 
pediment was  removed  it  is  manifest  tliat  there  was  present  in 
the  minds  of  the  parties  that  mutual  consent  which  gives  valid- 
ity to  marriages  in  cases  where  there  is  no  formal  solemnization. 
Some  criticism  is  made  upon  the  language  employed  by  them  to 
express  their  consent,  but  the  surrounding  circumstances  and 
subsequent  conduct  of  the  parties  leave  no  doubt  as  to  the  inter- 
pretation which  should  be  placed  upon  their  language.  As  held 
in  Renfrow  v.  Renfrow,  60  Kans.  2^^,  56  Pac.  534,  an  express 
agreement  between  the  parties  to  take  and  live  with  each  other 
as  husband  and  wife  is  not  necessary.  The  agreement  to  do  so 
may  be  implied  from  their  acts  and  conduct  in  mutually  recog- 
nizing and  holding  each  other  out  as  bound  together  in  the  mat- 
rimonial state.  The  words,  however,  that  were  used,  and  of 
which  testimony  was  given,  fairly  indicate  a  present  intention 
to  marry,  and  to  accept  each  other  as  husband  and  wife.  This, 
in  connection  with  their  subsequent  conduct,  was  clearly  suffi- 
cient to  establish  marriage. 

The  objections  to  rulings  upon  testimony  are  unsubstantial, 
and  what  has  been  said  is  sufficient  answer  to  the  exceptions 
taken  to  the  rulings  upon  instructions.  The  judgment  will  be 
affirmed. 

All  the  justices  concurring. 


POOLE  V.   PEOPLE.  6 1 


POOLE  V.  TEOPLE. 


24  Colo.  510,  52  Pac.  1025,  65  Am.  St.  245.    (1898.) 

Prosecution  of  C.  H.  Poole,  under  the  Colorado  statute,  for 
wilful  neglect  to  support  his  wife.  Judgment  of  conviction. 
Affirmed. 

GABBERT,  J. :  *  *  *  It  is  contended  that  the  evidence 
failed  to  establish  the  relationship  of  husband  and  wife  between 
plaintiff  in  error  and  the  prosecuting  witness.  It  appears,  con- 
clusively, from  a  certified  copy  of  the  records,  that  the  parties 
were  married  in  due  form,  at  Golden,  in  this  state,  the  26th 
day  of  August,  1S81.  At  this  time  the  prosecuting  witness  was 
a  married  woman,  although  she  seems  to  have  then  believed 
she  was  divorced  from  her  former  husband.  Plaintiff  in  error 
knew  of  her  former  marriage,  but  appears  also  to  have  believed 
that  she  had  been  divorced  ;  so  that,  although  the  marriage  con- 
tract of  August  26,  1881,  was  a  nullity  on  account  of  the  inca- 
pacity of  Mrs.  Poole  to  enter  into  a  valid  marriage  contract, 
both  were  innocent  of  any  wilful  intention  to  commit  a  wrong. 
March  31,  1S82,  the  former  husband  procured  a  divorce  from 
Mrs.  Poole.  The  plaintiff  in  error  admits  that  he  knew  of  these 
proceedings;  whether  Airs.  Poole  did  is  not  altogether  clear. 
After  this  knowledge  on  his  part,  with  the  exception  of  a  very 
brief  period,  they  continued  to  live  together  as  husband  and 
wife  until  some  time  in  1891.  Since  that  date,  they  have  sus- 
tained that  relationship,  at  least  a  greater  portion  of  the  time, 
down  to  September  19,  1896. 

If  parties  desire  marriage,  and  do  what  they  can  to  render 
their  union  matrimonial,  but  one  of  them  is  under  a  disability, 
their  cohabitation  thus  matrimonially  meant  and  continued 
after  the  disability  is  removed  will,  in  law,  make  them  husband 
and  wife  from  the  moment  that  such  disability  no  longer  exists. 
I  Bish.  Alar.,  Div.  &  Sep.,  §§  970,  979.  Or,  as  otherwise  stated 
by  this  author :  "To  employ  words  more  nicely  accurate,  and 
cover  a  larger  ground,  the  living  together  of  marriageable  par- 
ties a  single  day  as  married,  they  meaning  marriage,  and  the 
law  requiring  only  mutual  consent,  makes  them  husband  and 
wife."    Id.  §  975. 

The  facts  in  this  case  certainly  bring  the  parties  withm  the 
doctrine  above  announced.  They  attempted,  in  good  faith,  to 
enter  into  a  legal  marriage  contract  by  procuring  license  and 
solemnization  of  marriage  in  the  usual  way.   After  the  disabil- 


62  MARRIAGE. 

ity  of  j\Irs.  Poole  had  been  removed,  they  conthiued  to  live 
together  as  husband  and  wife;  held  each  other  out  to  the  public 
as  sustaining  that  relation;  and  although  no  subsequent  mar- 
riage ceremony  was  performed,  as  is  usual  to  evidence  contracts 
of  this  character,  they  having  originally  assumed  the  marriage 
relation  in  good  faith,  in  pursuance  of  what  tliey  believed  to  be 
a  valid  contract  of  marriage,  and  having  continued  that  rela- 
tionship for  a  long  period  after  it  could  have  been  legally  as- 
sumed, this  raises  the  presumption  that  thereby  they  intended 
and  meant  marriage, — mutually  assented  to  a  contract  of  that 
character.    *    *    * 

There  is  no  reversible  error,  and  the  judgment  is  affirmed. 

Affirmed. 


ATLANTIC  CITY  RAILROAD  CO  v.  GOODIN. 

62  N.  J.  L.  394,  42  Atl.  333,  45  L.  R.  A.  671,  -72  Am.  St. 

652.    (1899.) 

Action  by  Elizabeth  Goodin,  as  administratrix  of  John  H, 
Goodin,  to  recover  for  the  wrongful  killing  of  her  intestate. 
Judgment  for  plaintiff.   Affirmed. 

COLLINS,  J. :  The  writ  of  error  in  this  cause  removes  a 
judgment  for  damages,  recovered  on  verdict,  under  the  death 
act.  The  chief  complaint  is  that  the  trial  judge  refused  to  de- 
cide, as  matter  of  law,  that  the  decedent  was  guilty  of  negli- 
gence contributing  to  his  death,  but  submitted  the  question  of 
such  negligence  to  the  jury,  as  one  of  fact.  *  *  *  /^  careful 
reading  of  the  whole  testimony  convinces  me  that,  under  the 
circumstances  of  this  case,  the  question  of  contributory  negli- 
gence was  for  the  jury. 

The  only  other  errors  assigned  relate  to  the  beneficial  right 
of  the  plaintiff'  individually,  in  her  suit  as  administratrix. 
Goodin  left  no  child,  or  descendant  of  a  child,  and  no  parent. 
The  plaintiff  claimed,  as  widow,  the  entire  benefit  of  the  suit. 
P.  L.  1897,  p.  134.  If  she  were  not  such,  there  could  have  been 
no  recovery  under  the  declaration  as  framed ;  and,  while  the 
proof  showed  that  the  deceased  left  a  sister,  the  case  was  not 
tried  on  any  theory  that  recovery  could  be  had  in  her  interest. 
The  means  of  damages,  of  course,  would  have  differed;  and, 
as  the  judge,  in  his  charge  to  the  jury,  put  the  matter  of  dam- 
ages on  the  basis  of  a  recovery  by  a  widow,  it  is  but  fair  to  con- 


ATLANTIC  CITY  RAILROAD  CO.  V.  GOODIX.  63 

sider  proof  of  that  status  as  vital.  The  judj^e,  on  the  motion  to 
nonsuit  or  direct  a  verdict,  rightly  refused  to  decide  that  there 
was  no  such  proof. 

There  had  been  a  ceremonious  marriage  between  Goodin  and 
the  plaintiff  many  years  before ;  but  it  was  conceded  that,  soon 
afterwards,  the  plaintiff  had  learned  that  at  the  time  of  the 
marriage  Goodin  had  a  wife,  from  whom  he  was  separated. 
Cohabitation  was  nevertheless  continued,  and  the  parties  were 
reputed  to  be  husband  and  wife.  About  1892  the  real  \vife 
died.  Reliance  is  placed  by  the  defendant  upon  the  doctrine, 
declared  in  chancery  and  approved  in  this  court,  that  where  one 
of  two  persons,  knowing  of  an  existing  bar  to  his  or  her  mar- 
riage, perpetrates  a  fraud  upon  the  other,  by  going  through  a 
marriage  ceremony,  such  marriage  is  void,  and  that,  although 
such  bar  be  subsequently  removed,  cohabitation  and  reputation 
tliereafter  as  husband  and  wife  will  not  justify  a  presumption 
of  marriage.  Voorhees  v.  Voorhees'  Ex'rs,  46  N.  J.  Eq.  411,  19 
Atl.  172 ;  Collins  v.  Voorhees,  47  N.  J.  Eq.  315,  555,  20  _Atl.  676. 

If  the  plaintiff's  case  had  rested  on  presumption,  it  would 
have  failed ;  but  such  was  not  the  fact.  It  rested  upon  the  proof 
of  an  actual  marriage  after  the  first  wife's  death.  Some  proof 
of  reputation  of  marriage  was,  indeed,  admitted  under  objec- 
tion, and  its  admission  is  now  assigned  for  error.  Under  the 
Voorhees  case  it  was  not  evidential ;  but,  as  it  was  of  no  avail 
whatever  to  the  plaintiff,  it  was  immaterial,  and  harmless  to  the 
defendant.  In  the  Voorhees  case,  Vice  Chancellor  Van  Fleet 
concedes  that  a  contract  of  marriage  made  per  verba  de  prae- 
senti  amounts  to  an  actual  marriage,  and  is  valid ;  and  in  the 
case  of  Stevens  v.  Stevens  (N.  J.  Ch.),  38  Atl.  460,  Yicq 
Chancellor  Pitney  declares  the  law  on  the  subject  to  tlie  same 
effect,  citing  abundant  authority.  Dr.  Bishop  makes  it  quite 
plain  that  in  this  country,  in  the  absence  of  prohibitive  legisla- 
tion, no  more  is  required  to  constitute  a  legal  marriage  than 
tliat  tlie  man  shall  declare,  in  words  of  the  present  tense,  that 
the  woman  is  his  wife,  and  that  the  woman  shall  assent.  No 
witness  need  be  present,  and  no  particular  ceremony  is  neces- 
sary. Bish.  ]\Iar.,  Div.  &  Sep.,  chaps.  14,  15,  especially 
§§  299,  313.  The  effect  of  a  recent  statute  of  this  state  is  appli- 
cable only  to  nonresidents  (P.  L.  1897,  p.  378),  and  need  not 
now  be  considered.  The  plaintiff,  by  her  own  testimony,  made 
a  prima  facie  case  of  such  a  marriage  contract,  made  directly 
after  the  first  wife's  death.  True,  no  witness  was  present;  but 
tliere  was  not  the  slightest  reason  to  doubt  the  plaintiff's  story, 
and  every  reason  to  believe  it.  It  had  corroboration  m  the 
testimony  of  a  niece  of  the  plaintiff',  to  whom  Goodin  had  said, 


64  MARRIAGE. 

in  1892  or  1893,  after  his  first  wife's  death,  "Your  aunt  now  is 
my  lawful  wife."  One  of  the  exceptions  assigned  for  error  the 
refusal  to  strike  out  this  admission  of  marriage,  but  it  was 
clearly  competent  evidence.  Bish.  Mar.,  Div.  &  Sep.  §§  1057, 
1058.  The  defendant  called  no  witness,  and  in  no  way  weak- 
ened the  prima  facie  proof  of  such  marriage.  Of  course,  the 
jury  might  have  disbelieved  the  testimony,  and,  doubtless,  the 
judge,  on  request,  would  have  submitted  the  fact  of  marriage 
to  the  jury,  instead  of  assuming  it  as  proved  by  undisputed 
testimony ;  but  he  was  not  asked  to  do  so,  and  no  exception  was 
taken  to  the  charge.  The  exception  was  to  his  refusal  to  charge 
that  the  "same  proceeding"  was  necessary,  "to  make  a  common- 
law  marriage,  as  was  entered  into  before  disability  was  re- 
moved." This  seems  to  mean  that  a  ceremonious  marriage  was 
requisite,  and,  of  course,  the  judge  properly  refused  the  request. 

I  find  no  error  in  this  judgment. 

]\IcGill,  Ch.,  and  Lippincott  and  Van  Syckel,  JJ.,  dissent. 


THOMPSON  V.  THOMPSON. 

114  Mass.  566.    (1874.) 

Suit  by  Harriet  Thompson  against  Robert  Thompson  for  the 
annulment  of  their  marriage  on  the  ground  that  at  the  time 
thereof  he  had  another  wife  living.  The  defendant  was  mar- 
ried to  one  Ruth  West  in  1859.  On  February  19,  1867,  she 
obtained  a  divorce  from  him  on  the  ground  of  desertion,  he 
being  prohibited  to  marry  again  without  leave  of  court.  No- 
vember 21,  1867,  plaintiff  and  defendant  went  together  to  a 
lawyer's  office  in  Boston  where  he,  in  her  presence,  signed 
and  made  oath  to  a  petition  for  leave  to  marry  again.  She 
knew  of  the  former  marriage  and  divorce  and  also  understood 
the  purpose  of  the  petition.  That  evening  they  were  married 
by  a  duly  qualified  minister  of  the  gospel.  The  decree  author- 
izing him  to  marry  again  was  not  obtained,  however,  until  Feb- 
ruary 18,  1868.  From  November  28,  1867,  up  to  the  time  of 
this  decree  they  cohabited  as  husband  and  wife,  and  also  from 
the  date  of  the  decree  until  about  January  i,  1873,  she  being 
under  the  belief  that  their  original  marriage  was  or  had  become 
valid,  and  both  of  them  supposing  that  by  the  force  of  the  de- 
cree and  their  subsequent  cohabitation  they  had  become  law- 
fully husband  and  wife.  Two  children,  still  living,  were  born 


SUTTON  V.   WARREN.  6 


3 


thereupon  brought  this  suit.  The  trial  judge  decreed  that  the 
this  commonwealtli,  it  must  be  solemnized  between  parties 
of  the  marriage  after  February  i8,  1868.  About  January  i, 
1873,  the  plaintiff  was  advised  that  her  marriage  was  void  and 
marriage  was  void  and  the  defendant  appealed.  Affirmed. 

GRAY,  C.  J. :  To  constitute  a  valid  marriage  by  the  law  of 
competent  to  contract  it,  and  (except  in  the  case  of  Quakers) 
before  a  person  being  or  professing  to  be  a  justice  of  the  peace 
or  minister  of  the  gospel.  Milford  v.  Worcester,  7  ]\Iass.  48. 
Gen.  Stat.,  ch.  io6,  §§  14-20. 

At  the  time  of  the  ceremony  of  marriage  between  these  par- 
ties, the  husband  was  incapable  of  contracting  marriage  in  this 
commonwealth,  because  he  had  been  divorced,  for  his  fault, 
from  a  former  wife  (who  must  be  inferred  from  this  report  to 
have  been  still  living),  and  had  not  obtained  from  the  court 
leave  to  marry  again.  Gen.  Stat.,  ch.  107,  §  25.  The  solemniza- 
tion of  the  second  marriage,  therefore,  gave  it  no  validity,  and 
the  cohabitation  between  the  parties  was  unlaw^ful  at  its  begin- 
ning, and  could  only  become  lawful  upon  a  new  solemnization 
of  matrimony  after  tlie  husband  had  obtained  leave  to  marry 
again. 

The  case,  as  stated  in  the  report,  shows  that  such  new  sol- 
emnization was  not  proved  to  the  satisfaction  of  the  presiding 
judge  as  matter  of  fact,  and  does  not  require  it  to  be  presumed 
as  matter  of  law.  Northfield  v.  Plymouth,  20  Vt.  582.  The 
mere  belief  of  either  or  both  parties  that  they  were  husband 
and  wife  does  not  constitute  a  legal  marriage.  White  v.  White, 
105  Mass.  325,  7  Am.  Rep.  526.  A  decree  of  nullity  must, 
therefore,  be  entered  as  prayed  for.  Glass  v.  Glass,  114  ^lass, 
563.    Decree  of  nullity. 

5.    Conflict  of  L.\ws. 

a.    Marriages  J'alld  Where  Celebrated. 
(i.)  In  General. 

SUTTOX  V.  WARREN. 
10  Mete.  (Mass.)  451.    (1845.) 

Assumpsit  by  Samuel  Sutton  against  Thomas  B.  Warren  on 
a  promissory  note  given  by  defendant  to  Ann  Sutton,  plaintiff's 
wife.   Plaintiff  and  wife  were  natives  of  England,  where  they 
5 — C.vsES  DoM.  Rel. 


66  MARRIAGE. 

were  married  November  28,  1834.  About  one  year  after  their 
marriage  they  came  to  this  country,  where  they  ever  since 
Hved  as  husband  and  wife.  Ann  was  the  sister  of  Samuel  Sut- 
ton's mother,  that  is,  she  was  the  aunt  of  her  husband. 

Judgment  for  plaintiff  if  the  court  were  of  opinion  that  he 
was  entitled  to  recover ;  otherwise  he  was  to  be  nonsuit.  Judg- 
ment for  plaintiff. 

HUBBARD,  J. :  It  is  a  well  settled  principle  in  our  law,  that 
marriages  celebrated  in  other  states  or  countries,  if  valid  by 
the  law  of  the  country  where  they  are  celebrated,  are  of  binding 
obligation    within    this    commonwealth,    although    the    same 
might,  by  force  of  our  laws,  be  held  invalid,  if  contracted  here. 
This  principle  has  been  adopted,  as  best  calculated  to  protect 
the  highest  welfare  of  the  community  in  the  preservation  of 
the  purity  and  happiness  of  the  most  important  domestic  rela- 
tion in  life.    Greenwood  v.  Curtis,  6  Mass.  378;  Medway  v. 
Needham,    16  Mass.   157;  West  Cambridge  v.   Lexington,   i 
Pick.    (Mass.)    506;  Compton  v.  Bearcroft,  Bui.  N.   P.   114; 
Scrimshire  v.  Scrimshire  and  Middleton  v.  Janverin,  2  Hag- 
gard, 395,  437.    There  is  an  exception,  however,  to  this_ prin- 
ciple, in  tliose  cases  where  the  marriage  is  considered  as  inces- 
tuous by  the  law  of  Christianity,  and  as  against  natural  law. 
And  these  exceptions  relate  to  marriages  in  the  direct  lineal 
line  of  consanguinity,  and  to  those  contracted  between  broth- 
ers and  sisters;  and  the  exceptions  rest  on  the  ground,  that 
such  marriages  are  against  the  laws  of  God,  are  immoral,  and 
destructive  of  the  purity  and  happiness  of  domestic  life.    But 
I  am  not  av/are  that  these  exceptions,  by  any  general  consent 
among  writers  upon  natural  law,  have  been  extended  further, 
or  embraced  other  cases  prohibited  by  the  Levitical  law.   This 
subject  has  been  carefully  discussed  by  Chancellor  Kent,  in 
the  case  of  Wightman  v.  Wightman,  4  Johns.  Ch.  (N.  Y.)  343; 
and  while  he  is  clear  as  to  the  exceptions  before_  stated,  he 
thinks,  beyond  them  there  is  a  diversity  of  opinion  among 
commentators.   2  Kent.  Com.  Lect.  26.    See  also  Story's  Con- 
flict of  Laws,  §§  113,  114.    There  is  also  a  provision  in  our 
statutes,  making  marriages  void  in  this  state,  where  persons 
resident  in  the  state,  whose  marriage,  if  solemnized  here  would 
be  void,  in  order  to  evade  our  law,  and  with  the  intention  of 
returning  to  reside  here  again,  go  into  another  state  or  country 
and  there  have  their  marriage  solemnized.    Rev.  Stat.,  ch.  75, 
§  6.  The  only  object  of  this  provision  is,  as  stated  by  the  com- 
missioners in  their  report,  to  enforce  the  observance  of  our  own 
laws  upon  our  own  citizens,  and  not  to  suffer  them  to  violate 


WHITTINGTON  V.   M'CASKILL.  by 

regulations  founded  in  a  just  res^ard  to  good  morals  and  sound 
policy.  As  to  the  wisdom  of  this  provision  it  is  unnecessary 
here  to  speak.  But  the  provision  is  noted,  to  show  that  it  has 
not  been  overlooked  in  the  consideration  of  tlie  case  at  bar, 
which  presents  no  such  state  of  facts. 

In  view  of  the  whole  matter,  considering  it  as  a  part  of  the 
jus  gentium,  we  do  not  feel  called  upon  to  extend  the  excep- 
tions further.  By  our  statutes,  the  marriage  contracted  between 
Samuel  Sutton,  the  plaintiff,  and  Ann  Hills,  his  mother's  sister, 
if  celebrated  in  this  state,  would  have  been  absolutely  void. 
But  by  tlie  law  of  England,  this  marriage,  at  the  time  it  was 
contracted,  viz.,  in  November,  1834,  was  voidable  only,  and 
could  not  be  avoided  until  a  sentence  of  nullity  should  be  ob- 
tained in  the  spiritual  court,  in  a  suit  instituted  for  that  pur- 
pose. See  Poynter  on  jMarriage  and  Divorce,  86,  120;  2  Ste- 
phen's Com.  280.  In  The  Queen  v.  Inhabitants  of  A\A'e,  7 
Adolph.  &  Ellis,  771,  and  3  Nev.  &  P.  13,  the  court  of  Kings 
Bench  affirmed  the  doctrine,  and  held  such  marriage  voidable 
only,  and  that,  till  avoided,  it  was  valid  for  all  civil  purposes. 
Rose.  Crim.  Ev.  (2d  ed)  286.  Since  this  marriage  was  con- 
tracted, the  St.  of  6  Wm.  4,  ch.  54,  has  been  passed,  making 
such  marriages  which  should  afterwards  be  celebrated  abso- 
lutely void. 

In  tlie  present  case,  the  marriage  of  these  parties  was  not 
void  by  the  laws  of  England,  though  voidable  in  the  spiritual 
court.  It  never  was  avoided,  and  though  absolutely  prohibited 
by  our  laws,  yet  not  being  within  the  exception,  as  against  nat- 
ural law,  we  do  not  feel  warranted  in  saying  the  parties  are  not 
husband  and  wife.  The  plaintiff,  Samuel  Sutton,  sues  on  a 
promissory  note  given  to  the  said  Ann  Sutton,  and,  as  her  hus- 
band, he  can  maintain  an  action  thereon,  in  his  own  name  alone, 
tliere  being  no  other  cause  of  objection  raised  than  the  one 
stated  in  regard  to  the  legality  of  their  marriage.  Bayley  on 
Bhlls  (2d  Amer.  ed.),  42 ;  Clancy,  Husb.  &  Wife,  4. 

Judgment  for  the  plaintiff. 


WHITTINGTON  v.   ]\IcCASKILL. 

65  Fla.   162,  61  So.  236.    (1913.) 

Action  of  ejectment  by  Josephine  Whittington  against  R.  E. 
L.  !McCaskill.  Judgment  for  defendant.   Affirmed. 

SHACKLEFORD,  C.  J. :  The  plaintiff  in  error  brought  an 
action  of  ejectment  against  the  defendant  in  error  for  the  re- 


68  MARRIAGE. 

cover}'  of  the  possession  of  a  lot  in  the  city  of  Pensacola,  which 
resuhed  in  a  verdict  and  judgment  in  favor  of  the  defendant. 
It  developed  at  the  trial,  either  from  the  evidence  adduced  or 
from  the  agreed  statement  of  facts,  that  Elizabeth  Anderson, 
Avho  was  the  daughter  of  the  plaintiff,  and  who  had  one-eighth 
or  more  of  negro  blood  in  her  veins,  departed  tliis  life  inte- 
state, without  any  descendants  surviving  her,  seised  and  pos- 
sessed of  the  lot  in  question;  that  after  acquiring  the  title  to 
such  lot  Elizabeth  Anderson  removed  from  Pensacola,  Fla.,  to 
Leavenworth,  Kan.,  where  she  married  W.  J.  Grooms,  a  white 
person,  with  whom  she  lived  there  for  about  six  years  and  died 
there ;  that  after  her  death  the  husband,  W.  J.  Grooms,  as  her 
only  heir  at  law,  conveyed  such  lot  to  the  defendant.  After  all 
the  evidence  had  been  submitted,  the  trial  court  directed  the 
jury  to  find  a  verdict  for  the  defendant. 

We  shall  assume  that  the  plaintiff,  as  the  mother  of  Eliza- 
beth Anderson,  deceased,  was  shown  by  the  evidence  to  have 
been  entitled  to  maintain  this  action,  though  the  record  is  by 
no  means  clear  as  to  this.  See  section  2295  of  the  General 
Statutes  of  1906,  and  Stone  v.  Citizens'  State  Bank,  64  Fla. 
456,  59  South.  945.  We  shall  further  assume,  though  the  rec- 
ord does  not  show  that  proof  thereof  was  made,  that  such  a 
marriage  as  the  one  in  question  is  valid  in  the  state  of  Kansas. 
We  assume  these  matters,  for  the  reason  that  no  question  is 
raised  thereon,  and  they  seem  to  be  admitted  by  the  respective 
counsel.  As  w^e  understand  it,  the  sole  point  presented  for  our 
determination,  as  it  will  be  decisive  of  the  case,  is  as  to  whether 
or  not  the  marriage  between  Elizabeth  Anderson  and  W.  J. 
Grooms  in  the  state  of  Kansas,  where  such  marriages  are  rec- 
ognized as  valid,  will  be  held  invalid  in  this  state,  so  as  to  pre- 
vent Grooms  from  inheriting  as  the  sole  heir  at  law  of  Eliza- 
beth Anderson,  deceased,  the  lot  of  which  she  died  seised  and 
possessed.  In  support  of  her  contention,  plaintiff  in  error  relies 
upon  section  24  of  article  16  of  the  Constitution  of  1885,  which 
is  as  follows : 

"All  marriages  between  a  white  person  and  a  negro,  or  be- 
tween a  white  person  and  a  person  of  negro  descent  to  the 
fourth  generation,  inclusive,  are  hereby  forever  prohibited." 

Sections  2579  and  3529  of  the  General  Statutes  of  1906, 
which  are  as  follows,  are  also  relied  upon : 

"2579.  (2063.)  Marriages  between  white  and  negro  per- 
sons.— It  shall  be  unlawful  for  any  white  male  person  residing 
or  being  in  this  state  to  intermarry  with  any  negro  female  per- 


WHITTINGTON  V.   m'CASKILL,  69 

son ;  and  it  shall  be  in  like  manner  unlawful  for  any  white  fe- 
male person  residing  or  being  in  this  state  to  intermarry  with 
any  negro  male  person ;  and  every  marriage  formed  or  solemn- 
ized in  contravention  of  the  provisions  of  this  section  shall  be 
Utterly  null  and  void,  and  the  issue,  if  any,  of  such  surrepti- 
tious marriage  shall  be  regarded  as  bastard  and  incapable  of 
having  or  receiving  any  estate,  real,  personal  or  mixed,  by 
inheritance." 

"3529.  (2606.)  Intermarriage  of  white  and  negro  persons. 
— If  any  white  man  shall  intermarry  with  a  negro,  mulatto  or 
any  person  who  has  one-eighth  of  negro  blood  in  her,  or  if  any 
white  woman  shall  intermarry  with  a  negro,  mulatto  or  any 
person  who  has  one-eighth  of  negro  blood  in  him,  either  or  both 
parties  to  such  marriage  shall  be  punished  by  imprisonment  in 
tlie  state  prison  not  exceeding  ten  years,  or  by  fine  not  exceed- 
ing one  thousand  dollars." 

We  are  of  the  opinion  that  this  quoted  section  of  the  Con- 
stitution and  the  two  quoted  statutes  fail  to  support  this  con- 
tention. To  hold  otherwise  we  would  have  to  read  something 
therein  that  is  not  there.  Neither  Grooms  nor  Elizabeth  An- 
derson resided  or  -was  in  this  state  at  the  time  of  their  mar- 
riage ;  nor  did  they  reside  therein  subsequent  thereto.  Neither 
does  it  appear  that  she  removed  from  Florida  for  the  purpose 
of  contracting  such  marriage,  or  with  the  intent  to  evade  our 
statute.  We  see  no  useful  purpose  to  be  accomplished  by  citing 
and  discussing  authorities  from  other  jurisdictions,  a  number 
of  which  will  be  found  collected  in  the  note  to  In  re  Chace,  on 
page  1054  of  3  Ann.  Cas.  There  would  seem  to  be  some  con- 
flict in  the  authorities,  but  we  shall  not  undertake  to  analyze 
them,  or  to  point  out  the  statutes  upon  which  they  are  founded. 
Since  the  marriage  was  valid  in  the  state  of  Kansas,  where  it 
was  consummated  and  where  the  parties  continued  to  reside 
until  the  death  of  the  wife,  w^e  are  of  the  opinion  that  neither 
our  Constitution  nor  the  statutes,  referred  to  above,  have  any 
applicability  thereto.  Section  i8  of  our  Declaration  of  Rights 
expressly  provides :  "Foreigners  shall  have  the  same  rights  as 
to  the  ownership,  inheritance  and  disposition  of  property  in 
tliis  state  as  citizens  of  the  state." 

Our  statute  of  descent  (§  2295  of  the  General  Statutes  of 
1906),  also  referred  to  above,  provides  that  "if  there  be  no 
children  or  their  decedents,  and  the  decedent  be  a  married 
woman  and  her  husband  survive  her,  all  the  propert}',  real  and 
personal,  shall  go  to  the  husband."  It  follows  that  the  judg- 
ment must  be  affirmed. 


yo  MARRIAGE. 

JACKSON  V.  JACKSON. 
82  Md.  17,  33  Atl.  317,  34  L.  R.  A.  773.   (1895.) 

Proceedings  to  administer  the  estate  of  Richard  W.  Jack- 
son, who  died  intestate.  Sarah  Jackson,  daughter  of  decedent, 
plaintiff,  and  Ehhu  Jackson  and  others,  brothers  and  sisters 
of  decedent,  defendants.  The  main  question  was  the  legiti- 
macy of  the  plaintiff  as  turning  upon  the  validity  of  the  mar- 
riage of  her  parents,  which  took  place  in  Pennsylvania  with- 
out a  religious  ceremony  as  required  to  render  marriages  in 
IMaryland  valid.  At  the  time  of  the  alleged  marriage  the  par- 
ties were  domiciled  in  Pennsylvania,  but  afterwards  moved  to 
jMarvland  where  they  cohabited  as  husband  and  wife,  though 
there  was  some  conflict  in  the  evidence  as  to  the  character  of 
the  woman  and  the  nature  of  the  cohabitation.  The  parties 
separated  in  1874  and  never  again  cohabited.  Jackson  died  in 
1S93.  Decision  in  favor  of  plaintiff's  legitimacy.   Affirmed. 

McSHERRY,  J. :  This  case  is  now  before  us  for  the  second 
time.  The  first  appeal  is  reported  in  80  Md.  176,  30  Atl.  752. 
The  legal  principles  applicable  to  the  controversy  were  then 
laid  down,  and,  upon  a  reversal  of  the  judgment,  the  cause  was 
remanded  for  a  new  trial.  A  new  trial  was  had,  resulting  in  the 
same  verdict  and  judgment  that  were  recorded  on  the  first 
trial,  and  the  same  parties  have  again  appealed  who  were  the 
appellants  on  the  former  occasion.  There  was  but  a  single  is- 
sue involved,  and  that  was  whether  the  appellee  is  the  legiti- 
mate daughter  of  Richard  Watson  Jackson,  who  died  intestate 
some  years  ago.  In  passing  on  this  issue,  two  juries  in  different 
counties  have  found  by  their  verdicts  that  she  is.     *     *     * 

The  alleged  marriage  of  the  appellee's  mother  and  father,  if 
it  took  place,  as  has  been  twice  found  by  separate  juries,  took 
place  in  the  state  of  Pennsylvania.  The  evidence  relied  on  to 
establish  this  marriage  was  general  reputation,  cohabitation, 
and  acknowledgment.  The  admissibility  and  sufficiency  of  such 
evidence  to  prove  a  marriage  was  fully  considered  on  the 
former  appeal,  and  we  need  not  repeat  here  what  was  so  re- 
cently decided  there.  There  was  no  effort  to  prove  as  a  distinct 
fact  that  the  marriage  had  been  performed  with  any  religious 
ceremony.     *     *     * 

Assuming  there  was  no  religious  ceremony  proved,  or  at- 
tempted to  be  proved,  as  there  was  not,  it  has  been  insisted 
with  great  zeal  and  earnestness  that,  even  if  the  marriage  found 


JACKSON'  V.  JACKSON.  /I 

by  the  verdict  of  the  jury  to  have  been  contracted  and  consum- 
mated in  Pennsylvania  were  vahd  by  the  laws  of  that  state,  yet 
the  legitimacy  of  the  appellee,  who  was  born  in  Pennsylvania, 
where  her  parents  then  lived,  must  be  determined,  not  by  the 
laws  of  that  state,  but  by  the  laws  of  IMaryland;  and  that  if, 
therefore,  the  marriage  were,  by  reason  of  the  failure  to  show 
there  had  been  some  religious  ceremony,  one  that  would  not,  on 
that  account,  have  been  valid  under  the  statutes  of  Maryland, 
the  issue  of  such  a  marriage  would  in  Maryland  be  illegitimate, 
even  though  the  marriage  of  which  that  issue  was  the  fruit 
were  conceded  to  be  perfectly  valid  in  the  state  where  it  was 
contracted  and  consummated,  and  the  case  of  Doe  v.  Vardill, 
5  Barn.  &:  C.  438,  was  much  pressed  upon  us  to  support  that 
view. 

But  that  case,  and  others  founded  on  the  same  settled  prin- 
ciple, are  clearly  distinguishable  from  the  case  at  bar.  It  is  a 
maxim  as  old  as  the  common  law  that  "hceres  legitimus  est 
quem  nuptite  dcmonstrant."  A  marriagfe,  if  valid  where  sol- 
emnized, is,  in  general,  valid  everywhere,  and,  of  necessity,  the 
offspring  of  that  marriage  would  be  treated  as  legitimate, 
wherever  the  marriage  itself  would  be  regarded  as  valid.  But 
a  local  statute  which  makes  an  illegitimate  child,  or  a  child 
born  out  of  wedlock,  legitimate  upon  certain  prescribed  condi- 
tions, such  as  the  subsequent  marriage  of  the  parents,  and  the 
recognition  of  the  child  as  theirs,  can  have  no  extraterritorial 
operation,  and  therefore  can  not  give  to  such  child  in  another 
jurisdiction  an  inheritable  status  not  accorded  to  it  by  the  law 
of  the  latter  jurisdiction.  By  the  law  of  England,  a  child  born 
out  of  w^edlock  was  a  bastard.  By  the  law  of  Scotland,  the  sub- 
sequent marriage  of  the  father  and  the  mother,  and  their  recog- 
nition of  the  child  as  theirs,  legitimated  tlie  child.  But  that  stat- 
ute could  not  operate  upon  real  estate  in  England,  where  the 
law  gave  to  such  a  marriage  no  effect  as  legitimating  prior-born 
children.  The  same  principle  was  decided  in  Barnum  v.  Bar- 
num,  42  Md.  251,  and  Smitli  v.  Derr,  34  Pa.  St.  126. 

We  have  said  that  in  general  a  marriage  valid  where  per- 
formed is  valid  everywhere.  To  this  broad  rule  there  are,  how- 
ever, exceptions.  "These  exceptions  or  modifications  of  the 
general  rule  may  be  classified  as  follows — First,  marriages 
which  are  deemed  contrary  to  the  law  of  nature,  as  generally 
recognized  in  Christian  countries;  second,  marriages  which  the 
local  law-making  power  has  declared  shall  not  be  allowed  any 
validity.  *  *  *  To  the  first  class  belong  those  which  in- 
volve polygamy  and  incest ;  and  in  the  sense  in  which  the  term 
'incest'  is  used  are  embraced  only  such  marriages  as  are  in- 


72  MARRIAGE. 

cestuous  according  to  the  generally  accepted  opinion  of  Chris- 
tendom, which  relates  only  to  persons  in  direct  line  of  consan- 
guinity, and  brothers  and  sisters.  The  second  class,  i.  e.,  those 
prohibited  in  terms  by  the  statute,  presents  difficulties  that  are 
not  always  easy  of  solution,  and  have  led  to  conflicting  deci- 
sions. This  class  may  be  subdivided  into  two  classes — First, 
where  the  statutory  prohibition  relates  to  form,  ceremony,  and 
qualification,  it  is  held  that  compliance  with  the  law^  of  the  place 
of  marriage  is  sufficient,  and  its  validity  will  be  recognized,  not 
only  in  other  states  generally,  but  in  the  state  of  the  domicile 
of  the  parties,  even  where  they  have  left  their  own  state  to 
marry  elsewhere,  for  the  purpose  of  avoiding  the  laws  of  their 
domicile.  Instead  of  being  called  a  subdivision  of  the  second 
class  of  exceptions,  it  would  be  more  accurate  to  say  that  it  is 
an  exception  to  the  exception,  and  falls  within  the  operation 
of  the  general  rule  first  announced,  of  'valid  where  performed, 
valid  everywhere.'  To  the  second  subdivision  of  the  second 
class  of  exceptions  belong  cases  which,  prohibited  by  statute, 
may  or  may  not  embody  distinctive  state  policy,  as  affecting  the 
morals  or  good  order  of  society."  Pennegar  v.  State,  87  Tenn. 
244,  10  S.  W.  305 ;  s.  c,  with  copious  notes,  2  L.  R.  A.  703 ; 
State  V.  Tutty,  41  Fed.  753;  Brook  v.  Brook,  9  H.  L.  Cas. 
193;  Commonwealth  v.  Graham  (Mass.),  31  N.  E.  706. 

It  is  obvious,  then,  as  there  is  no  statute  in  IMaryland  declar- 
ing that  a  marriage  of  whose  existence  there  is  no  other  proof 
than  general  reputation  shall  be  void,  and  as,  at  most,  the  stat- 
utory provisions  relative  to  the  methods  of  solemnizing  mar- 
riages in  ]\Iaryland  relate  to  form  and  ceremony  only,  the 
courts  of  this  state  will  recognize  the  Pennsylvania  marriage 
as  valid,  if  that  marriage  is  valid  by  and  under  the  laws  of  the 
latter  commonwealth,  and  does  not  contravene  the  declared 
policy  of  our  ow-n  positive  law.  We  are  not  to  be  understood 
as  speaking  of  marriages  tolerated  elsewhere,  but  denounced 
by  our  ow^n  positive  state  policy  as  affecting  the  morals  or  good 
order  of  society.  Such  marriages,  however  regarded  elsewhere, 
would  not  be  treated  as  valid  here.  For  instance,  the  statutes 
of  ^Maryland  peremptorily  forbid  the  marriage  of  a  white  per- 
son and  a  negro,  and  declare  all  such  marriages  forever  void. 
It  is  therefore  the  declared  policy  of  this  state  to  prohibit  such 
marriages.  Though  these  marriages  may  be  valid  elsewhere, 
they  will  be  absolutely  void  here,  so  long  as  the  statutory  inhi- 
bition remains  unchanged. 

But  the  question  before  us  does  not  belong  to  such  a  cate- 
gory. At  most,  all  that  is  asserted  against  the  validity  of  the 
alleged  marriage  of  the  appellee's  parents  has  reference  to  form 


UNITED  STATES  V.  RODGERS.  73 

or  ceremony,  and  these,  as  we  have  seen,  do  not  cause  a  mar- 
riage to  fall  within  any  of  the  exceptions  to  the  general  rule 
that  a  marriage  valid  where  performed  is  valid  everywhere. 

4c      >|c       * 

Judgment  affirmed,  with  costs  above  and  below. 


UNITED  STATES  v.  RODGERS. 

United  States  District  Court,  Eastern  District  of  Pennsylvania. 

109  Fed.  886.   (1901.) 

Suit  by  the  United  States,  upon  the  relation  of  one  Devine, 
against  the  defendant  Rodgers,  as  commissioner  of  immigra- 
tion, upon  the  question  of  deporting  certain  persons  as  aliens. 

J.  B.  Mcpherson,  D.  J.:  The  relator  is  a  naturalized 
citizen  of  the  United  States,  and  is  the  husband  of  Rosa  De- 
vine,  and  the  father  of  her  idiot  son,  William.  Rosa  and  Wil- 
liam are  Russian  Jews,  whom  the  commissioner  of  immigra- 
tion at  the  port  of  Philadelphia  has  ordered  to  be  deported,  on 
the  ground  that  both  are  aliens,  and  that  William  is  an  idiot, 
and  Rosa  is  a  pauper  that  is  likely  to  become  a  public  charge. 
The  alienage  of  both  is  denied  upon  the  ground  that  when  the 
husband  and  father  became  a  citizen  the  wife  and  child  ceased 
to  be  aliens ;  and  this  is  the  only  point  to  be  decided.  The  de- 
cision is  admitted  to  depend  upon  the  answer  to  be  given  to  tlie 
question  whether  Rosa  is  the  relator's  lawful  wufe,  or,  rather, 
whether  she  is  to  be  so  regarded  in  this  state;  for  she  is  her 
husband's  niece,  and  such  a  marriage,  if  originally  celebrated  in 
Pennsylvania,  would  be  void:  Act  i860,  §  39  (P.  L.  393)  ;  i 
Purd.  Dig.  (Ed.  1872)  p.  54.  Among  the  Jews  in  Russia,  how- 
ever, where  the  ceremony  took  place,  it  has  been  satisfactorily 
proved  that  a  marriage  between  uncle  and  niece  is  lawful,  and, 
being  valid  there,  the  general  rule  undoubtedly  is  that  such  a 
marriage  would  be  regarded  everyAvhere  as  valid.  But  there  is 
this  exception,  at  least,  to  the  rule :  If  the  relation  thus  entered 
into  elsewhere,  although  lawful  in  the  foreign  country,  is  stig- 
matized as  incestuous  by  the  law  of  Pennsylvania,  no  rule  of 
comity  requires  a  court  sitting  in  this  state  to  recognize  the  for- 
eign marriage  as  valid.  I  think  the  following  quotation  from 
Dr.  Reinhold  Schmid,  a  Swiss  jurist  of  eminence,  to  be  found 
in  Whart.  Confl.  Laws  (2d  Ed.)  §  175,  correctly  states  the 
proper  rule  upon  the  subject: 

"When  persons  married  abroad  take  up  their  residence  with 
us,  it  is  agreed  on  all  sides  that  tlie  marriage,  so  far  as  its  for- 


74  MARRIAGE. 

mal  requisites  are  concerned,  can  not  be  impeached,  if  it  corre- 
sponds either  with  the  laws  of  the  place  where  the  married  pair 
had  their  domicile,  or  with  those  where  the  marriage  was  cele- 
brated. But  we  must  not  construe  this  as  implying  that  tlie 
juridical  validity  of  the  marriage  depends  absolutely  on  the 
laws  of  tlie  place  under  whose  dominion  it  was  constituted ;  for 
the  fact  that  a  marriage  was  void  by  the  laws  of  a  prior  domi- 
cile is  no  reason  why  we  should  declare  it  void  if  it  united  all 
the  requisites  of  a  lawful  marriage  as  they  are  imposed  by 
our  laws.  So  far  as  concerns  the  material  conditions  of  the 
contract  of  marriage,  we  must  distinguish  between  such  hin- 
drances as  would  have  impeded  marriage,  but  can  not  dissolve 
it  when  already  concluded,  and  such  as  would  actually  dissolve 
a  marriage  if  celebrated  in  the  face  of  them.  A  matrimonial  re- 
lation that  in  the  last  sense  is  prohibited  by  our  laws  can  not  be 
tolerated  in  our  territory,  though  it  was  entered  into  by  for- 
eigners before  they  visited  us.  We  will,  therefore,  tolerate  no 
polygamous  or  incestuous  unions  of  foreigners  settling  within 
our  limits." 

Other  authority  may  be  found  in  State  v.  Brown,  47  Ohio 
St.  102,  23  N.  E.  747,  where  it  is  said,  in  determining  the  effect 
of  a  statute  that  forbade  sexual  intercourse  between  persons 
nearer  of  kin  than  cousins: 

'r.,  "We  hold,  therefore,  that  by  section  7019  Rev.  St.,  sexual 
commerce  as  between  persons  nearer  of  kin  than  cousins  is 
prohibited,  whether  they  have  gone  through  the  form  of  inter- 
marriage or  not ;  nor  is  it  material  that  the  marriage  was  cele- 
brated where  it  was  valid,  for  we  are  not  bound,  upon  princi- 
ples of  comity,  to  permit  persons  to  violate  our  criminal  laws, 
adopted  in  the  interest  of  decency  and  good  morals,  and  based 
upon  principles  of  sound  public  policy,  because  they  have  as- 
sumed, in  another  state  or  country,  where  it  was  lawful,  the 
relation  which  led  to  the  acts  prohibited  by  our  laws." 

See,  also.  Inhabitants  of  Medway  v.  Inhabitants  of  Need- 
ham,  16  Mass.  157,  8  Am.  Dec.  131,  and  In  re  Stull's  Estate, 
183  Pa.  625,  39  Atl.  16,  39  L.  R.  A.  539. 

In  view  of  this  exception  to  the  general  rule,  it  seems  to  me 
to  be  impossible  to  recognize  this  marriage  as  valid  in  Pennsyl- 
vania, since  a  continuance  of  the  relation  here  would  at  once 
expose  the  parties  to  indictment  in  the  criminal  courts,  and  to 
punishment  by  fine  and  imprisonment  in  the  penitentiary.  In 
other  words,  this  court  would  be  declaring  the  relation  lawful, 
while  the  court  of  quarter  sessions  of  Philadelphia  county 
would  be  obliged  to  declare  it  unlawful.  Whatever  may  be  the 


STATE  V.   BELL. 


75 


standard  of  conduct  in  another  country,  the  moral  sense  of 
tliis  community  would  undoubtedly  be  shocked  at  the  spectacle 
of  an  uncle  and  niece  living  together  as  husband  and  wife;  and 
I  am,  of  course,  bound  to  regard  the  standard  that  prevails 
here,  and  to  see  that  such  an  objectionable  example  is  not  pre- 
sented to  the  public.  A  review  of  the  Pennsylvania  legislation 
affecting  the  marriage  of  uncle  and  niece  will  be  found  in 
Parker's  Appeal,  44  Pa.  309.  It  is  accordingly  ordered  that 
Rosa  and  William  Devine  be  remanded. 


STATE  V.  BELL. 

7  Baxter  (Tenn.)  9,  32  Am.  Rep.  549.    (1872.) 

Indictment  of  J.  P.  Bell,  a  white  man,  for  living  with  a 
negro  woman  as  his  wife.  The  parties  were  married  in  Missis- 
sippi, being  domiciled  in  that  state  at  the  time  of  the  marriage. 
Subsequently  they  removed  to  Tennessee  and  continued  in  that 
state  to  cohabit  as  man  and  wife.  Miscegenation  was  lawful  in 
Mississippi  but  prohibited  by  statute  in  Tennessee.  Upon  mo- 
tion, the  indictment  was  quashed  in  tlie  court  below,  and  the 
state  appealed.   Reversed. 

TURNEY,  J.:  The  motion  of  the  defendant  to  quash  was 
allowed  because  it  appeared  upon  the  face  of  the  indictment 
the  parties  were  married  in  the  state  of  Mississippi. 

The  question  to  be  determined  is,  does  a  marriage  in  ]\Iis- 
sissippi  protect  persons  who  live  together  in  this  state  in  viola- 
tion of  the  act  of  the  general  assembly  of  the  27tli  of  June, 
1870? 

For  the  defendant,  the  case  of  Morgan  v.  IMcGhee,  5  Humph. 
(Tenn.)  13,  is  relied  on.  That  case  only  decides  that  marriages 
solemnized  according  to  the  law  and  usages  of  the  country 
where  made  are  good  in  Tennessee.  It  is  the  manner  and  form 
of  marriage,  and  not  the  capacity  of  the  parties  to  contract  the 
marriage,  which  was  passed  upon  by  the  court  delivering  the 
opinion.  The  reason  for  such  rule  is  readily  seen.  Each  state 
has  its  peculiar  regulation — some  more,  some  less  strict  and 
formal.  The  general  rule  resulting  from  all — that  a  marriage 
good  in  the  place  where  made  after  the  forms  and  usages  of 
that  place,  shall  be  good  everywhere — is  intended  to  prevent  a 
mischief  that  would  otherwise  grow  out  of  a  dift'erence  of  for- 


76  MARRIAGE. 

mal  and  local  regulations.  For  instance,  in  some  of  the  states  a 
license  is  not  absolutely  necessary.  Now,  if  in  one  of  such 
states  a  marriage  is  solemnized  witliout  license,  being  good 
there,  it  is  good  in  Tennessee,  where  a  license  is  necessary, 
and  where  a  marriage  and  living  together  without  license  would 
subject  tlie  parties  to  indictment  for  lewdness. 

A  respect  for  and  recognition  by  each  state — in  fact,  nation — 
of  the  legal  ceremonial  of  marriage  in  another,  is  all  that  is 
meant  or  intended  by  the  rule.  All  standard  authors  declare 
the  rule  comes,  not  ex  comitate,  but  ex  debito  justitise.  Were 
it  otherwise,  each  state  would  be  dependent  upon  the  concur- 
ring legislation  and  adjudication  of  every  otlier  for  the  perma- 
nency and  efficacy  of  its  own. 

Each  state  is  sovereign,  a  government  within,  of,  and  for 
itself,  with  the  inherent  and  reserved  right  to  declare  and  main- 
tain its  own  political  economy  for  the  good  of  its  citizens,  and 
can  not  be  subjected  to  the  recognition  of  a  fact  or  act  contra- 
vening its  public  policy  and  against  good  morals,  as  lawful, 
because  it  was  made  or  existed  in  a  state  having  no  prohibition 
against  it  or  even  permitting  it. 

Extending  the  rule  to  the  width  asked  for  by  the  defendant, 
and  we  might  have  in  Tennessee  the  father  living  with  his 
daughter,  the  son  with  the  mother,  the  brother  with  the  sister, 
in  lawful  wedlock,  because  they  had  formed  such  relations  in  a 
state  or  country  where  they  were  not  prohibited.  The  Turk  or 
Mohammedan,  with  his  numerous  wives,  may  establish  his 
harem  at  the  doors  of  the  capitol,  and  we  are  without  remedy. 
Yet  none  of  these  are  more  revolting,  more  to  be  avoided,  or 
more  unnatural  than  the  case  before  us. 

Chancellor  Kent  says  the  contract  of  marriage  is  a  stable 
and  sound  contract,  of  natural  as  well  as  municipal  law.  This 
is  neither. 

Reverse  the  judgment  and  remand  the  cause  for  a  new  trial. 


STATE  V.  ROSS. 

76  N.  Car.  242,  22  Am.  Rep.  678.    (1877.) 

Indictment  of  Pink  Ross,  a  negro  man,  and  Sarah  Ross,  a 
white  woman,  for  fornication  and  adultery,  in  cohabiting  with- 
out being  lawfully  married.   The  defendants  were  married  in 


STATE  V.   ROSS.  'J^ 

South  Carolina  according  to  the  laws  of  that  state,  in  May, 
1873.  Pink  Ross  was  a  native,  and  at  the  time  of  the  marriage 
a  domiciled  citizen,  of  South  Carolina.  Immediately  before  the 
marriage  the  defendant  Sarah,  (then  Sarah  Spake),  who  up 
to  the  tmie  of  the  marriage  was  domiciled  in  North  Carolina, 
went  to  South  Carolina  for  the  purpose  of  marrying  the  other 
defendant,  intending  to  evade  the  law  of  North  Carolina 
against  miscegenation.  The  parties  cohabited  in  South  Carolina 
until  August,  1873,  when  they  moved  to  North  Carolina.  I\Iis- 
cegenation  was  lawful  in  South  Carolina  but  prohibited  in 
North  Carolina.  Defendants  were  held  not  guilty  and  the  state 
appealed.   Affirmed. 

RODMAN,  J.:  [After  stating  the  facts  as  above.]  It  will 
be  observed  that  the  verdict  states  that  Sarah  went  to  South 
Carolina  with  the  intent  to  evade  the  law  of  North  Carolina 
prohibiting  the  marriage  of  a  negro  with  a  white  person.  It 
does  not  say  that  she  had  an  intent  to  return  with  her  husband 
and  live  in  this  state.  It  is  difficult  to  see  how,  in  going  to  South 
Carolina  to  marry  a  negro,  without  an  intent  to  return  with  him 
to  that  state,  she  could  evade  or  intend  to  evade  the  laws  of  this 
state.  Our  laws  have  no  extra-territorial  operation,  and  do  not 
attempt  to  prohibit  the  marriage  in  South  Carolina  of  blacks 
and  whites  domiciled  in  that  state.  Such  a  case  differs  essen- 
tially from  one  in  which  both  persons,  being  domiciled  in  North 
Carolina,  leave  the  state  for  the  purpose  of  contracting  a  mar- 
riage forbidden  by  its  law,  and  with  an  intent  to  return  to  and 
reside  in  North  Carolina  after  such  marriage ;  and  also  from 
one  in  which  the  man  alone  leaves  this  state  for  that  purpose 
and  with  that  intent. 

By  the  marriage  of  Sarah,  the  domicile  of  her  husband  be- 
came hers.  And  we  must  suppose  that  his  domicile  was  bona 
fide  in  South  Carolina  until  they  removed  to  this  state  in  Au- 
gust, 1873. 

It  does  not  appear  that  any  change  of  domicile  was  thought 
of  before  tliat  time.  We  must  put  out  of  view,  therefore,  the 
supposed  intent  to  evade  the  law  of  North  Carolina,  as  a  con- 
clusion of  law  unsupported  by  or  repugnant  to  the  facts  found 
in  the  verdict,  and  consider  the  case  as  if  both  parties  had  been 
domiciled  in  South  Carolina  at  the  time  of  the  marriage.  It 
is  clear  that  upon  the  marriage  the  domicile  of  the  husband 
became  that  of  the  wife,  and  for  that  purpose  it  would  be  im- 
material whether  the  marriage  took  place  in  tlie  state  of  the 
husband  or  in  any  other  state.     *     *     * 


yS  MARRIAGE. 

The  question  thus  presented  is  an  important  one.  The  state 
of  Nortli  Carolina,  with  the  general  concurrence  of  its  citi- 
zens of  both  races,  has  declared  its  conviction  that  marriages 
between  them  are  immoral  and  opposed  to  public  policy  as 
tending  to  degrade  them  both.  It  has,  therefore,  declared  such 
marriages  void.  It  is  needless  to  say  that  the  members  of  this 
court  share  that  opinion.  For  tliat  reason  it  becomes  us  to  be 
careful  not  to  be  unduly  influenced  by  it  in  ascertaining,  not 
what  the  law  of  North  Carolina  is  upon  such  marriages  con- 
tracted within  her  limits — that  is  found  in  the  act  of  assembly 
and  is  beyond  doubt — but  what  the  law  of  North  Carolina  is 
upon  the  question  presented,  and  for  that  we  must  look  be- 
yond the  statutes  of  the  state. 

If  we  are  right  in  our  conception  of  the  question  presented, 
to  wit :  whether  a  marriage  in  South  Carolina  between  a  black 
man  and  a  white  woman  bona  fide  domiciled  there  and  valid  by 
the  law  of  tliat  state,  must  be  regarded  as  valid  in  this  state 
when  the  parties  afterward  migrate  here?  We  think  that  the 
decided  weight  of  English  and  American  authority  requires  us 
to  hold  that  the  relation  thus  lawful  in  its  inception  continues 
to  be  lawful  here. 

[Here  the  court,  after  citing  some  authorities,  states  the  gen- 
eral rule  and  the  exceptions  thereto  that  marriages  valid  where 
celebrated  are  valid  everywhere,  and  continues:] 

On  examining  the  illustrations  of  these  exceptions  given  by 
the  author,  [Story,  Confl.  of  Laws,  §  113],  it  will  be  seen  that 
tliey  are  considerably  limited.  Thus  all  Christian  countries 
agree  that  marriages  in  the  direct  line  and  between  the  nearest 
collaterals  are  incestuous,  and  that  polygamy  is  unlawful,  con- 
sequently such  marriages  will  be  held  null  everywhere,  because 
they  were  null  in  the  place  of  the  contract.  But  beyond  these 
few  cases  in  which  all  states  agree,  there  is  a  difference  as  to 
what  marriages  are  incestuous,  and  in  such  cases  the  admitted 
international  law  leaves  it  to  each  state  to  say  what  is  incestu- 
ous in  respect  to  its  own  subjects.  In  England,  a  marriage 
with  the  sister  of  a  deceased  wife  is  held  incestuous,  and  be- 
tween persons  domiciled  in  England  it  will  be  held  void  wher- 
ever contracted.  Brook  v.  Brook,  9  H.  L.  Cas.  193.  But  it 
does  not  follow  that  such  a  marriage  contracted  in  a  state 
where  it  was  lawful,  between  subjects  of  that  state,  would  be 
held  void  in  England  if  the  parties  afterward  became  domi- 
ciled there.  There  is  no  reason  to  think  it  would  be.  Story, 
§§    116,    ii6a.     Still   stronger   are   the   illustrations   given   in 

§§  95,  96. 

However  revolting  to  us  and  to  all  persons  who,  by  reason 


STATE  V.   ROSS.  79 

of  living  in  states  where  the  two  races  are  nearly  equal  in 
numbers,  have  an  experience  of  the  consecjuences  of  matri- 
monial connections  between  them,  such  a  marriage  may  appear, 
such  can  not  be  said  to  be  the  common  sentiment  of  the  civi- 
lized and  Christian  world.  When  Massachusetts  held  such 
a  number  of  negroes  as  to  make  the  validity  of  such  marriages 
a  cjuestion  of  practical  importance,  her  sentiment  and  her 
legislation  were  such  as  ours  are  today.  IMedway  v.  Needham, 
i6  Mass.  157.  Now  since  she  has  got  rid  of  her  negroes  the 
question  is  of  no  practical  importance  to  her.  And  as  far  as 
may  be  gathered  from  her  statute  book  she  considers  such 
marriages  unobjectionable.  Most  of  the  states  of  the  Union 
and  of  the  nations  of  Europe  with  whom  the  question  is  merely 
speculative  take  a  similar  view  of  it. 

It  is  impossible  to  identify  this  case  with  that  of  an  incestu- 
ous or  polygamous  marriage  admitted  to  be  such  jure  gentium. 
The  law  of  nations  is  a  part  of  the  law  of  North  Carolina.  We 
are  under  obligations  of  comity  to  our  sister  states.  We  are 
compelled  to  say  that  this  marriage  being  valid  in  the  state 
where  the  parties  were  bona  fide  domiciled  at  the  time  of  the 
contract  must  be  regarded  as  subsisting  after  their  immigration 
here. 

The  inconveniences  which  may  arise  from  this  view  of  the 
law  are  less  than  those  which  result  from  a  different  one.  The 
children  of  such  a  marriage,  if  born  in  South  Carolina,  could 
migrate  here  and  would  be  considered  legitimate.  The  only 
evil  which  could  be  avoided  by  a  contrary  conclusion  is  that 
the  people  of  this  state  might  be  spared  the  bad  example  of  an 
unnatural  and  immoral  but  lawful  cohabitation.  The  incon- 
veniences on  the  other  side  are  numerous,  and  are  forcibly 
stated  in  Scrimshire  v.  Scrimshire,  2  Hagg.  Consist.  Rep.  417, 
and  in  Story,  §  121,  "And,  therefore,  all  nations  have  consented, 
or  are  presumed  to  consent,  for  the  common  benefit  and  ad- 
vantage, that  such  marriages  shall  be  good  or  not  according  to 
th.e  law  of  the  country  where  they  are  celebrated." 

Upon  this  question  above  all  others  it  is  desirable  (altering 
somewhat  the  language  of  Cicero  with  which  Story  concludes 
his  great  work)  that  there  should  not  be  one  law  in  Maine  and 
another  in  Texas,  but  that  the  same  law  shall  prevail  at  least 
tliroughout  the  United  States. 

There  is  no  error  in  the  judgment  below.  Let  this  opinion  be 
certified. 

Judgnient  affirmed. 

READE,  J.,  delivered  a  dissenting  opinion. 


8o  MARRIAGE. 

(2)      i\lARRIAGES  IN   EVASION   OF  LaW   OF  DOMICILE. 

COMMONWEALTH  v.  GRAHA^I. 

157  Mass.  yz^  31  N.  E.  706,  16  L.  R.  A.  578,  34  Am.  St.  255. 

(1892.) 

Prosecution  of  one  Theodore  G.  Graham  under  a  statute  for 
nonsupport  of  his  wife.  The  defendant  and  his  wife,  being 
citizens  of  IMassachusetts,  went  to  Maine  for  the  purpose  of 
evading  the  law  of  Massachusetts  requiring  the  written  con- 
sent of  a  minor's  father  to  his  marriage,  and  were  married  in 
Maine,  the  defendant,  at  the  time  being  only  19  years  old.  His 
father  never  consented  to  the  marriage,  and  upon  his  return 
to  Massachusetts  claimed  and  took  defendant's  wages,  the 
defendant  and  his  wife  living  for  a  few  days  after  the  mar- 
riage at  his  father's  home.  At  the  time  of  the  complaint  the 
defendant  allowed  him  a  part  of  his  wages.  Neither  defendant 
nor  his  wife  had  any  property.  The  defendant  excepted  to  the 
rulings  of  the  court  as  to  instructions  refused  and  given,  the 
court  instructing  that  the  marriage  was  valid,  and  that  the  de- 
fendant had  a  right  to  such  portion  of  his  wages  as  would 
enable  him  to  support  his  wife,  and  that  the  father  could  claim 
only  the  rest,  the  effect  of  which  was  that  defendant  could  not 
claim  his  duty  to  his  father  as  a  defense.  Exceptions  over- 
ruled. 

FIELD,  C.  J. :  The  exceptions  recite  that  the  "defendant 
was  nineteen  at  the  time  of  his  marriage,  and  twenty  when  the 
complaint  was  made."  The  age  of  the  wife  nowhere  appears, 
but  it  was  not  contended  that  she  was  under  the  age  of  con- 
sent. If  the  marriage  had  been  solemnized  within  the  common- 
wealth, it  would  have  been  valid.  Pub.  St.  ch.  145,  §  6;  Parton 
V.  Hervey,  i  Gray,  119.  It  is  not  contended  that  the  marriage 
was  void  by  the  laws  of  Maine,  but  we  can  not  take  judicial 
notice  of  the  statutes  of  Maine;  and  the  common  law  of  that 
state  must  be  presumed,  in  the  absence  of  evidence,  to  be  the 
same  as  the  common  law  of  Massachusetts.  See  Hiram  v. 
Pierce,  45  Maine  367.  Section  10,  ch.  145,  Pub.  St.,  was  in- 
tended to  define  the  cases  in  which  a  marriage  should  be 
deemed  void  which  was  solemnized  in  another  state  by  persons 
resident  in  this  commonwealth,  who  went  into  the  other  state 
for  the  purpose  of  having  the  marriage  solemnized  there,  and 
afterwards  returned  to  and  resided  in  this  commonwealtli ;  but 
the  present  case  is  not  within  this  section.  The  general  rule  of 


COMMONWEALTH  V.  GRAHAM.  8 1 

law  is  t]iat  marriage  contracted  elsewhere,  if  valid  where  it  is 
contracted,  is  held  valid  here,  although  the  parties  intended  to 
evade  our  laws,  unless  the  statutes  declare  such  a  marriage 
void,  or  the  marriage  is  one  deemed  "contrary  to  the  law  of 
nature,  as  generally  recognized  in  Christian  countries."  Com. 
V.  Lane,  113  jMass.  458;  Sutton  v.  Warren,  10  Aletc.  (]\Iass.) 
451 ;  Com.  V.  Hunt,  4  Cush.  49.  The  consequences  of  this  mar- 
riage must  be  the  same  as  if  it  had  been  solemnized  in  this  com- 
monwealth; and  the  presiding  justice,  therefore,  correctly  ruled 
that  this  marriage  "imposed  upon  the  defendant  all  the  duties 
and  responsibilities  of  the  marital  relation." 

The  real  question  is  whedier,  when  a  minor  son  marries 
witliout  the  consent  of  his  father,  and  the  father  never  con- 
sents to  it,  and  needs  the  son's  wages  for  his  support  and  the 
support  of  his  family,  the  father  is  entitled  to  the  son's  wages 
during  minority  in  preference  to  tlie  wife,  who  also  needs  the 
wages  for  her  support.  The  ruling  was  that  the  "wife  would 
be  entitled  as  of  right  to  receive  support  from"  her  husband, 
and  that  he  "would  be  entitled  as  of  right  to  such  portion  of  his 
wages  as  to  enable  him  to  support  his  wife ;  that  the  father 
could  only  claim  the  rest."  It  seems  to  be  settled  that  the  mar- 
riage of  a  minor  son,  with  the  consent  of  his  father,  works  an 
emancipation ;  and  it  is  not  clear  that  tlie  marriage  of  a  minor 
son  without  his  father's  consent  does  not  have  the  same  effect, 
although  the  decision  in  White  v.  Henry,  24  Maine  531,  is 
contra.  It  has  been  said  tliat  "the  husband  becomes  the  head 
of  a  new  family.  His  new  relations  to  his  wife  and  children 
create  obligations  and  duties  which  require  him  to  be  master 
of  himself,  his  time,  his  labor,  earnings,  and  conduct."  Sher- 
burne V.  Hartland,  37  Vt.  528.  There  seems  to  be  little  doubt 
that,  when  an  infant  daughter  marries,  she  is  emancipated  from 
the  control  of  her  parent.'.  Aldrich  v.  Bennett,  63  N.  H.  415; 
Burr  v.  Wilson,  18  Tex.  307;  Porch  v.  Fries,  18  X.  J.  Eq.  204; 
Rex  V.  Wilmington,  5  Barn.  &  Aid.  525 ;  Rex  v.  Everton, 
I  East.  526;  Northfield  v.  Brookfield,  50  Vt.  62.  See,  how- 
ever, Babin  v.  Le  Blanc,  12  La.  Ann.  367.  The  meaning 
of  emancipation  is  not  that  all  the  disabilities  of  infancy 
are  removed,  but  that  the  infant  is  freed  from  parental  con- 
trol, and  has  a  right  to  his  own  earnings.  In  Taunton  v. 
Plymouth,  15  ]\Iass.  204,  it  was  intimated  that  the  marriage  of 
an  infant  son  with  the  consent  of  the  father  entitled  the  son 
to  his  own  earnings  for  the  support  of  his  family ;  and  in  Davis 
v.  Caldwell,  12  Cush.  (]\Iass.)  512,  it  Avas  said  that  an  infant 
husband  is  liable  for  necessaries  furnished  for  himself  and  his 
6 — Cases  Dom.Rel. 


82  MARRIAGE. 

family.  It  is  clear,  we  tliink,  that  it  is  the  duty  of  an  infant 
husband  to  support  his  wife,  and  that,  if  he  have  property  and 
a  guardian,  it  is  the  duty  of  the  guardian  to  apply  the  income, 
and,  so  far  as  is  necessary,  the  principal,  of  his  ward's  property, 
to  tlie  maintenance  of  the  ward  and  his  family,  under  Pub.  St. 
ch.  139,  §  30.  We  are  of  opinion  that  these  considerations  make 
it  necessary  to  hold  that  an  infant  husband  is  entitled  to  his 
own  wages,  so  far  as  they  are  necessary  for  his  own  support 
and  that  of  his  wife  and  children,  even  if  he  married  without 
his  father's  consent,  and  that  the  ruling  of  the  court  was  suffi- 
ciently favorable  to  the  defendant.  Whetlier  sound  policy  does 
not  require  that  in  every  case  in  which  the  marriage  is  valid 
an  infant  husband  should  be  entitled  to  all  his  earnings  need 
not  now  be  decided. 
Exceptions  overruled. 


LEVY  V.  DOWNING. 
213  Mass.  334,  100  N.  E.  638.    (1913.) 

Petition  by  Abraham  Le\7'  against  Evelyn  Downing  for  a 
decree  of  nullity  of  marriage.  Both  parties  were  citizens  of 
^Massachusetts,  and  being  less  than  18  years  of  age,  went  to 
New  Hampshire  with  intent  to  evade  the  law  of  Massachusetts 
as  to  the  marriage  of  minors,  and  were  married  in  New  Hamp- 
shire, immediately  returning  to  Massachusetts  to  live,  never, 
however,  cohabiting  as  husband  and  wife.  Petition  dismissed 
for  want  of  jurisdiction. 

HAMMOND,  J. :  "That  a  marriage  valid  by  the  laws  of  the 
place  where  it  is  celebrated  is  valid  in  this  state,  on  grounds 
of  public  policy,  though  the  parties  went  into  another  state 
merely  to  avoid  the  laws  of  the  state,  is  established  in  the  cases 
of  Medway  v.  Needham,  16  Mass.  157,  8  Am.  Dec.  131,  West 
Cambridge  v.  Lexington,  i  Pick.  506  [11  Am.  Dec.  231],  Put- 
nam V.  Putnam,  8  Pick.  (Mass.)  433,  and  Sutton  v.  Warren, 
10  Tiletc.  (Mass.)  451."  Drury,  J.,  in  Commonwealth  v.  Hunt, 
4  Cush.  49.  See,  also.  Commonwealth  v.  Lane,  113  Mass. 
458,  18  Am.  Rep.  509,  and  cases  therein  cited  for  a  general 
discussion  of  the  subject.  By  statutes  in  this  commonwealth 
certain  cases  have  been  freed  from  the  operation  of  this  rule, 
and   in   those    specified   cases   the   marriage   is   void   in   this 


JOHNSON  V.   JOHNSON.  83 

commonwealth,  "if  the  parties,  both  being  resident  here  and 
intending  to  return  and  reside  here,"  go  into  a  foreign  state 
in  order  to  evade  the  provisions  of  our  statute,  "and  tliere  have 
the  marriage  solemnized,  and  return  and  reside  here."  R.  L. 
ch.  151,  §§  1-5,  both  inclusive,  and  §  lo.  The  present  case  does 
not  come  within  these  statutes,  and  therefore  is  governed  by 
tlie  general  law. 

The  question  of  tlie  validity  of  the  marriage  must  be  decided 
by  the  law  of  New  Hampshire.  In  the  absence  of  proof  to  the 
contrary  the  common  law  of  that  state  must  be  regarded  as  the 
same  as  in  this  state.  The  only  statute  of  tliat  state  material  to 
this  inquiry  is  St.  1907,  ch.  80,  §  2,  which  is  as  follows:  "The 
age  of  consent  shall  be  in  tlie  male  eighteen  years  and  in  the 
female  sixteen  years.  Any  marriage  contracted  below  tlie  age 
of  consent,"  with  certain  exceptions  not  here  material,  "may 
in  the  discretion  of  the  superior  court  be  canceled  at  the  suit  of 
the  party  who  at  the  time  of  contracting  such  marriage  was 
below  the  age  of  consent  unless  such  party  after  arriving  at 
such  age  shall  have  confirmed  the  marriage."  Under  that  law 
tliis  marriage  was  solemnized,  and  by  that  law  must  the  ques- 
tion of  its  validity  be  determined.  It  is  plain  that  under  it  the 
marriage  is  not  void,  but  must  stand  until  and  unless  tlie  supe- 
rior court  of  that  state  in  the  exercise  of  its  discretion  sees  fit 
to  annul  it.  The  superior  court  of  this  state  rightly  held  that 
it  had  not  the  power  to  grant  to  the  petitioners  the  relief  prayed 
for. 

Petition  dismissed  without  prejudice. 


JOHNSON  V.  JOHNSON. 

57  Wash.  89,  106  Pac.  500,  26  L.  R.  A.  (N.  S.)  179.    (1910.) 

Action  for  divorce  by  Nannie  W.  Johnson  against  Amel 
Johnson.    Judgment  for  defendant.    Reversed. 

RUDKIN,  C.  J. :  This  is  an  appeal  from  a  judgment  deny- 
ing a  divorce  to  the  appellant  and  dismissing  her  action.  The 
case  is  brought  here  on  the  findings  of  fact,  conclusions  of  law, 
and  decree.  The  only  findings  we  deem  it  necessary  to  set  forth 
or  consider  are  the  following:  "That  plaintiff  and  defendant 
were  married  at  Mctoria,  B.  C,  J\Iay  2,  A.  D.  1905,  and  ever 
since  have  been  and  now  are  husband  and  wife.  That  at  the 
time  of  said  marriage  the  parties  hereto  were  domiciled  in  the 


84  MARRIAGE. 

city  of  Seattle,  County  of  King,  State  of  Washington,  and  that 
to  avoid  the  law  of  this  state  prohibiting  said  marriage  tliey 
went  to  Mctoria,  B.  C,  and  were  married  there,  immediately 
returning  to  the  said  city  of  Seattle,  where  tliey  have  ever 
since  made  their  domicile.  That  plaintiff  and  defendant  are 
first  cousins  of  the  whole  blood,  the  mother  of  plaintiff  and 
the  mother  of  defendant  being  sisters  of  tlie  whole  blood." 
There  was  no  appearance  by  the  defendant  in  the  court  below, 
and  no  brief  has  been  filed  In  this  court  by  him  or  in  his 
behalf,  but  from  such  investigation  as  we  have  been  able  to 
give  tlie  subject  we  are  at  a  loss  to  know  upon  what  ground  or 
for  what  reason  the  divorce  was  denied.  Section  4468,  Ballin- 
ger's  Ann.  Codes  &  St.  (Pierce's  Code,  §  1791),  declares  that: 
"]\Iarriages  in  the  following  cases  are  prohibited:  *  *  * 
(2)  When  the  parties  thereto  are  nearer  of  kin  to  each  other 
than  second  cousins,  whether  of  the  whole  or  half-blood,  com- 
puting by  the  rules  of  the  civil  law;  (3)  *  *  *  and  if  any 
person  being  within  the  degrees  of  consanguinity  or  affinity  in 
which  marriages  are  prohibited  by  this  section  carnally  know 
each  other,  they  shall  be  deemed  guilty  of  incest,  and  shall  be 
punished  by  imprisonment  in  the  state  penitentiary  for  a  term 
not  exceeding  ten  years  and  not  less  than  one  year."  "A  mar- 
riage between  relations  within  the  prohibited  degrees  is  void, 
its  continuance  Is  repugnant  to  good  morals  and  public  policy, 
and  it  will  be  annulled  at  the  instance  of  either  party,  notwith- 
standing the  applicant  entered  into  it  knowingly  and  wilfully." 
26  Cyc.  907. 

In  considering  the  validity  of  a  marriage  contracted  In  viola- 
tion of  a  similar  statutory  prohibition,  In  re  Wilbur's  Estate, 
8  Wash.  35,  35  Pac.  407,  40  Am.  St.  886,  this  court  said: 
"The  general  rule  Is  that  the  lex  loci  contractus  is  controlling 
in  adjudications  Involving  the  validity  of  marriages,  *  *  * 
though  this  doctrine  has  an  important  exception,  which  is  in- 
volved in  the  case  before  us.  Appellant  claims  that  Inasmuch 
as  at  the  time  of  the  alleged  marriage  there  was  in  this  terri- 
tory a  statute  prohibiting  a  marriage  betwen  a  white  person  and 
an  Indian  (Acts  1866,  p.  81),  even  considering  the  reservation 
as  a  foreign  jurisdiction,  the  marriage  was  void,  because  Wil- 
bur thereby  committed  a  fraud  upon  the  law  of  his  domicile, 
which  was  the  territory.  W^here  a  marriage  is  prohibited  either 
by  the  statute  or  by  those  rules  of  morality  and  decency  which 
make  it  against  the  natural  lav/  of  civilized  nations  for  two 
persons  to  marry,  as  Incestuous  or  polygamous  marriages,  it  is 
in  vain  for  them  to  go  beyond  their  domicile  to  engage  In  a  con- 
tract of  marriage  for  the  purpose  of  avoiding  the  prohibition. 


STATE  V.   KENNEDY.  85 

Their  contract  will  be  held  void  upon  their  return."  See  also, 
State  V.  Fcnn,  47  Wash.  561,  92  Pac.  417,  17  L.  R.  A.  (N.  S.) 
800.  I\Iarriages  between  parties  so  nearly  related  are  prohibited 
in  nearly  all  civilized  countries,  and,  if  argument  in  support  of 
such  a  policy  is  needed,  the  fact  that  the  only  offspring  of  this 
marriage  is  deaf  and  dumb  supplies  it. 

The  marriage  being  void,  it  was  the  duty  of  the  trial  court 
to  declare  it  so,  and  the  judgment  is  reversed,  with  directions' 
to  annul  the  marriage  and  for  further  proceedings  not  incon- 
sistent with  tliis  opinion. 


STATE  V.  KENNEDY. 

76  N.  Car.  251,  22  Am.  Rep.  683.    (1877.) 

Indictment  of  Isaac  Kennedy,  a  negro  man,  and  Mag  Ken- 
nedy, a  white  woman,  for  fornication  and  adultery,  in  cohab- 
iting without  being  lawfully  married.  Both  defendants  were 
citizens  of  North  Carolina,  and  went  to  South  Carolina  for  the 
purpose  of  evading  the  law  of  North  Carolina  and  were  mar- 
ried in  South  Carolina  according  to  the  law  of  that  state,  and 
immediately  returned  to  North  Carolina.  Verdict  of  guilty. 
Judgment  affirmed. 

RODMAN,  J. :  The  defendants  in  this  case  were  domiciled 
in  North  Carolina  before  and  at  the  time  of  their  marriage  in 
South  Carolina,  to  which  state  they  went  for  the  purpose  of 
evading  the  law  of  North  Carolina,  which  prohibited  their 
marriage,  and  they,  immediately  after  the  marriage,  returned 
to  North  Carolina,  where  they  have  since  continued  to  reside. 

To  quote  from  the  opinion  of  Lord  Cranworth  in  Brook  v. 
Brook,  9  H.  L.  193 :  "There  can  be  no  doubt  of  the  power  of 
every  country  to  make  laws  regulating  the  marriage  of  its  own 
subjects;  to  declare  who  may  marry;  how  they  shall  marry; 
and  the  consequences  of  their  marrying." 

It  is  not  necessary  to  say  that  a  marriage  contracted  in  an- 
other state  between  residents  of  this  state,  without  the  rites 
and  ceremonies  required  in  this  state,  will  be  void,  even  though 
the  parties  left  this  state  for  the  purpose  of  evading  those  rights- 
Dalrymple  v.  Dalrymple,  2  Hagg.  Consist.  R.  54. 

As  to  the  formalities  of  the  marriage  the  lex  loci  will  gov- 
ern. But  when  the  law  of  North  Carolina  declares  that  all 
marriages  between  negroes  and  white  persons  shall  be  void. 


86  .  MARRIAGE. 

this  is  a  personal  incapacity  which  follows  the  parties  wherever 
tliey  go  so  long  as  they  remain  domiciled  in  North  Caiolina. 
And  we  conceive  that  it  is  immaterial  whether  they  left  the  state 
with  the  intent  to  evade  its  law  or  not,  if  they  had  not  bona  fide 
acquired  a  domicile  elsewhere  at  the  time  of  the  marriage. 
Story's  Confl.  of  Laws,  §  65  ;  Williams  v.  Gates,  3  Ired.  (N.  C.) 
535.  In  Brook  v.  Brook,  above  cited,  Lord  Campbell  says: 
"It  is  quite  obvious  that  no  civilized  state  can  allow  its  domi- 
ciled subjects  or  citizens,  by  making  a  temporary  visit  to  a  for- 
eign country,  to  enter  into  a  contract  to  be  performed  in  the 
place  of  domicile  if  the  contract  is  forbidden  by  the  law  of  the 
place  of  domicile,  as  contrary  to  religion,  or  to  morality,  or  to 
any  of  its  fundamental  institutions."  In  that  case  an  English- 
man casually  met  in  Denmark  the  sister  of  his  deceased  wife 
and  married  her  there.  As  such  marriages  were  prohibited  be- 
tween English  subjects,  it  was  held  void. 

A  law  like  this  of  ours  would  be  very  idle  if  it  could  be 
avoided  by  merely  stepping  over  an  imaginary  line. 

There  are  cases  to  the  contrary  of  this  conclusion  decided  by 
courts  for  which  we  have  great  resp&ct.  They  are  cited  and 
the  whole  question  is  learnedly  and  earnestly  discussed  by  i 
Bishop  on  Mar.  and  Div.,  §§  371,  389;  Medway  v.  Needham, 
16  Mass.  157;  Stevenson  v.  Gray,  17  B.  Monr.  (Ivy.)  193. 

It  seems  to  us,  however,  that  when  it  is  conceded  as  it  is,  tliat 
a  state  may,  by  legislation,  extend  her  law  prescribing  incapac- 
ities for  contracting  marriage  over  her  own  citizens  who  con- 
tract marriage  in  other  countries,  by  whose  law  no  such  inca- 
pacities exist,  as  Massachusetts  did  after  the  decision  in  Med- 
way v.  Needham,  the  main  question  is  conceded,  and  what 
remains  is  of  little  importance.  Nothing  remains  but  the  ques- 
tion of  legislative  intent  to  be  collected  from  the  statute.  About 
the  intent  in  this  case  we  have  no  doubt. 

There  is  no  error.    Let  this  opinion  be  certified. 

Judgment  affirmed. 

3.    Marriage  of  Divorced  Persons  Prohibited  to  Marry. 

STATE  V.  SHATTUCK. 

69  Vt.  403,  38  Atl.  81,  40  L.  R.  A.  428,  60  Am.  St.  936.   ( 1897.) 

Prosecution  for  adultery.  The  defendant,  Addie_  Shattuck, 
having  been  convicted,  alleged  exceptions.  Exceptions  over- 
ruled. 


STATE  V.  SHATTUCK,  8/ 

ROWELL,  J. :  The  charj^e  is  that  the  prisoner,  an  unmar- 
ried woman,  committed  adultery  with  Coburn,  a  married  man. 
It  appeared  that  Coburn's  first  wife,  who  is  still  living,  obtained 
a  divorce  from  him  in  this  state  in  December,  1895;  that  on 
June  13,  1896,  he  and  Grace  Hoisington,  both  of  whom  were 
then  domiciled  in  Windsor,  in  this  state,  went  to  Claremont, 
N.  H.,  and  were  there  married  by  a  clerg}'man  authorized  by 
tlie  law  of  that  state  to  solemnize  marriages ;  and  that  immedi- 
ately after  the  marriage  they  returned  to  Windsor,  where  they 
have  lived  ever  since,  and  where  they  first  cohabited  as  hus- 
band and  wife,  never  having  cohabited  as  such  in  New  Hamp- 
shire. 

The  only  evidence  of  the  law  of  New  Hampshire  respecting 
marriages  was  chapter  174  of  the  Public  Statutes  of  that  state, 
entitled  "jMarriages."  That  chapter  imposes  no  restraint  upon 
remarriage  by  the  guilty  party  to  a  decree  of  divorce.  The 
court  charged  the  jury  that  if  it  found  that  the  marriage  cere- 
mony was  performed  by  the  clergj^man,  and  that  he  was  au- 
thorized to  perform  it,  as  his  testimony  tended  to  show,  and 
also  found  that  the  said  Grace  cohabited  with  Coburn  under  the 
belief  that  the  marriage  was  legal,  as  her  testimony  tended  to 
show,  tlie  marriage  was  valid,  and  Coburn  was  a  person  with 
whom  the  crime  of  adultery  could  have  been  committed.  To 
this  the  prisoner  excepted,  and  also  for  that  the  court  did  not 
charge  that  there  was  no  evidence  in  the  case  to  show  that 
Coburn,  being  disqualified  by  the  laws  of  this  state  to  contract 
a  lawful  marriage,  was,  notwithstanding  such  disqualification, 
competent  by  the  laws  of  New  Hampshire  to  contract  a  lawful 
marriage,  and  that  without  such  testimony  the  fact  of  his  mar- 
riage to  said  Grace  was  not  made  out.  This  last  exception  is 
not  sustainable.  As  we  have  said,  the  chapter  of  the  New 
Hampshire  statutes  put  in  evidence  is  not  restrictive  in  this  be- 
half ;  and  if  it  be  said  that  some  other  part  of  the  statutes  may 
be,  the  answer  is  that,  as  such  restrictions  upon  marriage  are 
exceptional,  the  burden  was  on  the  prisoner  to  show  the  re- 
striction, if  any  there  is.  Hutchins  v.  Kimmell,  31  IMich.  126, 
132.  And,  as  no  such  restriction  exists  in  the  common  law  of 
this  state,  the  presumption  is  that  tlie  common  law  of  New 
Hampshire  is  like  ours  in  this  regard.  Ward  v.  Morrison,  25 
Vt.  593,  601.  The  marriage  in  question  must,  therefore,  be 
taken  to  be  valid  by  the  law  of  New  Hampshire.  But,  had  it 
been  celebrated  in  this  state,  it  would  be  void  here,  for  our 
statute  provides  that  it  shall  not  be  lawful  for  a  divorced  libelee 
to  marry  a  person  other  than  the  libelant  for  three  years  from 
the  time  the  divorce  is  granted,  unless  tlie  libelant  dies;  and 


88  MARRIAGE. 

imposes  a  penalty  on  a  person  who  violates  that  provision,  or 
lives  in  this  state  under  a  marriage  relation  forbidden  by  it; 
and  we  have  recently  held  that  a  marriage  celebrated  in  this 
state  in  violation  thereof,  between  parties  domiciled  here,  was 
void  here.    Ovitt  v.  Smith,  68  Vt.  35,  33  Atl.  769. 

The  prisoner  claims  that  this  marriage  is  void  here  notwith- 
standing it  was  celebrated  in  New  Hampshire,  and  is  valid 
there,  for  that,  when  a  marriage  is  absolutely  prohibited  in  a 
state  or  country  as  being  contrary  to  public  policy,  and  leading 
to  social  evils,  the  domiciled  inhabitants  of  that  state  or  coun- 
try can  not  be  permitted,  by  passing  the  frontier,  and  entering 
another  state,  in  which  the  marriage  is  not  prohibited,  to  cele- 
brate a  marriage  forbidden  in  their  own  state,  and  immediately 
return  to  their  own  state,  to  insist  on  their  marriage  being  rec- 
ognized as  lawful. 

It  is  the  common  law  of  Christendom  that  as  to  form  and 
ceremony  a  marriage  good  where  celebrated  is  good  every- 
where. But  as  to  capacity  to  marry  the  authorities  are  not 
agreed,  some  holding  that,  as  in  other  contracts,  it  depends 
upon  the  law  of  domicile,  and  some  that  it  depends  upon  the 
law  of  the  place  where  the  marriage  is  solemnized,  as  do  form 
and  ceremony,  and  that  a  marriage  good  where  celebrated  is 
good  everywhere,  unless  odious  by  the  common  consent  of  na- 
tions, or  positively  prohibited  by  the  public  laws  of  a  country 
from  motives  of  policy. 

It  is  undoubtedly  true  that  states  may  control  this  matter  by 
statute,  as  Massachusetts  does,  where  it  is  enacted  that  when 
persons  resident  in  that  state,  in  order  to  evade  its  marriage 
laws,  and  with  an  intention  of  returning  to  reside  there,  go  into 
another  state  or  country,  and  are  married,  and  afterwards  re- 
turn and  reside  in  Massachusetts,  the  marriage  shall  be  deemed 
void.  We  have  no  such  express  provision.  The  language  of 
our  statute  is  general,  and  it  is  a  fundamental  rule  that  no  stat- 
ute, whether  relating  to  marriage  or  otherwise,  if  in  the  ordi- 
nary general  form  of  words,  will  be  given  effect  outside  of  the 
state  or  country  enacting  it.  To  bind  even  citizens  abroad,  it 
must  include  them,  either  in  express  terms  or  by  necessary  im- 
plication. Hence,  if  a  statute,  silent  as  to  marriages  abroad, 
as  ours  is,  prohibits  classes  of  persons  from  marrying  generally, 
or  from  intermarrying,  or  declares  void  all  marriages  not  cele- 
brated according  to  prescribed  forms,  it  has  no  effect  upon  mar- 
riages, even  of  domiciled  inhabitants,  entered  into  out  of  the 
state.  Those  marriages  are  to  be  judged  of  by  the  courts  of 
such  state,  just  as  though  the  statute  did  not  exist.  If  they 
are  valid  by  the  international  law  of  marriage  and  the  local  law 


STATE  V.   SIIATTUCK. 


8« 


of  tlie  place  where  celebrated,  they  are  valid  by  the  law  of  such 
state,  and  the  statute  has  nothing  to  do  with  the  question  if  such 
international  law  is  a  part  of  the  law  of  the  state,  as  it  is  here, 
for  a  written  law  not  construed  to  be  extraterritorial  does  not 
change  the  unwritten  law  as  to  extraterritorial  marriages ;  and 
therefore  parties  who  are  under  no  disability  by  international 
law  rnay  choose  their  place  of  marriage,  and,  if  the  marriage 
is  valid  there,  it  wall  be  valid  everywhere,  though  they  were 
purposely  away  from  home,  and  the  same  transaction  in  the 
state  of  their  domicile  would  not  have  made  them  married. 
There  is,  therefore,  no  foundation  for  an  argument  based  sim- 
ply on  tlie  idea  of  an  evasion  of  the  law  of  domicile. 

This  doctrine  is  entirely  applicable  to  statutes  prohibiting 
marriage  after  divorce.  Such  statutes  are  not  extraterritorial, 
unless  made  so  by  express  words  or  necessary  implication,  as 
has  been  frequently  held  in  this  country,  tliough  there  are  cases 
the  other  way,  among  w^hich  is  the  recent  and  well-considered 
case  of  Pennegar  v.  State,  87  Tenn.  244,  10  S.  W.  305,  where 
tlie  cases  adopting  the  same  view  will  be  found.  But  the 
weight  of  American  authority,  as  w^ell  as  reason  and  analogy, 
sustain  the  proposition  stated.  This  whole  subject  is  very  fully 
and  satisfactorily  discussed  by  ]\Ir.  Bishop  in  chapter  39  of  the 
first  volume  of  his  work  on  Marriage,  Divorce  and  Separation ; 
and,  as  we  adopt  his  views,  an  extended  discussion  here  is  not 
necessary.  The  subject  is  also  fully  discussed  in  Common- 
wealth V.  Lane,  113  Alass.  458,  and  Ross  v.  Ross,  129  IMass. 
243.  In  the  latter  case  it  is  said  that,  tlie  relation  of  husband 
and  wife  being  based  upon  the  contract  of  the  parties,  and 
recognized  by  all  Christian  nations,  the  validity  of  the  contract, 
if  not  polygamous  nor  incestuous  according  to  the  general 
opinion  of  Christendom,  is  governed,  even  as  regards  the  capac- 
ity of  tlie  parties,  by  the  law  of  the  place  of  marriage ;  that  this 
status,  once  legally  created,  should  be  recognized  everywhere 
as  fully  as  if  created  by  the  law  of  the  domicile;  and  that, 
therefore,  such  a  marriage, if  valid  by  the  law  of  the  place  where 
contracted,  even  if  contracted  between  persons  domiciled  in 
IMassachusetts,  and  incompetent  to  marry  there,  is  valid  there 
to  all  intents  and  effects,  civil  and  criminal,  except  so  far  as 
the  legislature  has  clearly  declared  that  such  a  marriage  out 
of  the  commonwealth  shall  be  deemed  invalid. 

The  same  doctrine  is  held  in  \'an  Voorhis  v.  Brintnall,  86 
N.  Y.  iS,  where  it  is  said  that,  in  the  absence  of  express  words 
to  that  effect,  it  is  not  to  be  inferred  that  tlie  legislature  in- 
tended its  enactments  to  contravene  the  jus  gentium  under 
w^hich  the  question  of  tlie  validity  of  tlie  marriage  contract  is 


90  MARRIAGE. 

referred  to  the  lex  loci  contractus,  and  which  is  made  binding 
by  the  consent  of  all  nations,  and  professedly  and  directly  oper- 
ates upon  all ;  and  that,  while  every  country  can  regulate  the 
status  of  its  own  citizens,  until  the  will  of  the  state  finds  clear 
and  unmistakable  expression  to  the  contrary,  tliat  law  must  con- 
trol. Judge  IMarshall  says  in  United  States  v.  Fisher,  2  Cranch 
(U.  S.)  389,  that,  "where  rights  are  infringed,  where  funda- 
mental principles  are  overturned,  where  the  general  system  of 
the  law  is  departed  from,  the  legislative  intent  must  be  ex- 
pressed with  irresistible  clearness,  to  induce  a  court  of  justice  to 
suppose  a  design  to  effect  such  objects." 

Brook  v.  Brook,  9  H.  L.  Cas.  193,  sustains  the  prisoner's 
contention.  There  a  man  and  his  deceased  wife's  sister,  both 
of  whom  were  lawfully  domiciled  British  subjects,  went  tem- 
porarily to  Denmark,  and  were  there  married,  where  their 
marriage  was  valid ;  but  it  was  held  void  in  England,  because 
an  English  statute  prohibited  such  marriages.  The  law  lords 
delivered  separate  opinions,  and  the  only  ground  upon  which 
they  agreed  was  that,  as  the  statute  made  such  marriages  be- 
tween English  subjects  domiciled  in  England  void  because  de- 
clared by  the  act  to  be  contrary  to  the  law  of  God,  it  must  be 
construed  to  include  such  marriages  though  solemnized  abroad. 
Judge  Gray  says,  in  Commonwealth  v.  Lane,  above  cited,  that 
the  judgment  in  that  case  proceeds  upon  the  ground  that  an 
act  of  parliament  is  not  merely  an  ordinance  of  man,  but  a  con- 
clusive declaration  of  the  law  of  God,  and  that  the  result  is 
that  the  law  of  God,  as  declared  by  act  of  parliament,  and  ex- 
pounded by  the  house  of  lords,  varies  according  to  time,  place, 
length  of  life  of  parties,  pecuniary  interests  of  third  persons, 
petitions  to  human  tribunals,  and  technical  rules  of  statutory 
construction  and  judicial  procedure.  Mr.  Bishop  criticises  the 
case  very  sharply,  and  says  it  is  of  the  highest  importance  that 
it  be  sufficiently  understood  in  this  country  to  avoid  any  acci- 
dent of  its  being  followed  by  our  courts.  He  discusses  it  very 
fully,  admitting  that  it  was  difficult  for  him  to  write  soberly 
about  it,  as  the  decision  was  announced  in  apparent  oblivion  of 
the  course  that  justice  had  taken  for  ages  in  England,  and  ig- 
nored alike  acts  of  parliament  and  judicial  decisions.  To  follow 
it,  he  says,  would  lead  us  into  confusion  not  to  be  endured 
where  marriage,  good  order,  and  Christian  decency  are  re- 
spected. 

The  French  law  is  much  like  the  English  in  this  regard, 
though  more  exacting.  By  the  Code  Napoleon,  a  marriage  con- 
tracted in  a  foreign  country  between  French  people,  or  between 
a  French  person  and  an  alien,  is  valid  if  it  has  been  celebrated 


STATE  V.   FEXX.  9I 

in  the  manner  followed  in  such  country,  provided  it  has  been 
preceded  by  the  publication  required  by  the  Code,  and  pro- 
vided the  French  person  has  not  violated  the  provisions  of  tlie 
Code  concerning  the  qualifications  and  conditions  required  to 
contract  marriage.  Cachard's  French  Civ.  Code,  art.  170.  This 
accords  with  the  further  provision  of  the  Code  that  laws  relat- 
ing to  the  status  and  capacity  of  persons  apply  to  Frenchmen 
even  residents  in  a  foreign  country.  Id.  art.  3.  On  tliis  prin- 
ciple the  civilians  generally,  we  think,  hold  that  as  to  capacity 
to  marry  the  law  of  the  domicile  governs.  But  tlie  other  view, 
as  suggested  by  Judge  Story,  is  founded  upon  a  more  liberal 
basis  of  international  policy  that  deems  it  far  better  to  sup- 
port as  valid  marriages  celebrated  in  another  state  or  country 
when  in  conformity  with  tlie  laws  tliereof,  although  some  minor 
inconveniences  may  arise  therefrom,  than  to  shake  general  con- 
fidence in  such  marriages,  to  subject  the  innocent  issue  to  con- 
stant doubts  as  to  their  legitimacy,  and  to  leave  the  parties 
tliemselves  at  liberty  to  cut  adrift  from  their  solemn  obligations 
whenever  they  happen  to  become  dissatisfied  with  tlieir  lot. 
Story,  Confl.  Laws,  pi.  124. 

Judgment  that  there  is  no  error  in  the  proceedings  of  the 
county  court,  and  diat  the  prisoner  take  notliing  by  her  excep- 
tions. 


STATE  V.  FENN. 
47  Wash.  561,  92  Pac.  417,  17  L.  R.  A.  (N.  S.)  800.    (1907.) 

Prosecution  of  Elizabeth  Fenn  for  bigamy.  Demurrer  to 
information  sustained.   Appeal  by  state.     Reversed. 

RUDKIX,  J. :  An  information  was  filed  against  the  de- 
fendant in  tlie  court  below  accusing  her  of  the  crime  of  bigamy. 
A  demurrer  to  the  information  was  sustained,  and,  tlie  state 
refusing  to  plead  further,  judgment  of  dismissal  was  entered, 
from  which  the  present  appeal  is  prosecuted. 

The  information  is  in  the  usual  form  in  such  cases,  and 
charges  a  crime,  unless  it  contains  matter  which,  if  true,  would 
constitute  a  defense  to  the  action.  The  matter  set  forth  in  the 
information  and  relied  on  as  a  defense  is  this :  The  respondent 
was  lawfully  divorced  from  one  Edward  Hodges,  her  then  hus- 
band, by  the  Superior  Court  of  King  County  in  this  state  in  tlie 
month  of  February,  190 1.  Within  10  days  after  obtaining  such 
divorce  she  married  one  Joseph  Clark  in  \'ictoria,  B.  C,  and 
continued  to  cohabit  with  him  until  the  month  of  January,  1907, 


92  MARRIAGE. 

such  marriage  being  valid  according  to  the  laws  of  British  Co- 
lumbia, where  contracted.  The  alleged  bigamous  marriage  was 
contracted  in  Pierce  County  in  tliis  state  on  the  i6th  day  of 
January,  1907,  with  one  Arthur  Fenn.  If  the  Victoria  mar- 
riage was  valid  in  this  state,  the  information  charges  a  crime; 
but,  if  invalid,  the  respondent  had  no  husband  living  at  the  time 
of  the  Fenn  marriage,  and  the  judgment  should  be  affirmed. 

The  question  thus  presented  calls  for  a  construction  of  §  I 
of  the  act  of  IMarch  9,  1893,  Laws  1893,  p.  225,  ch.  94,  which 
reads  as  follows:  "Section  i.  Whenever  a  judgment  or  decree 
of  divorce  from  the  bonds  of  matrimony  is  granted  by  the 
courts  in  this  state,  neither  party  thereto  shall  be  capable  of 
contracting  marriage  with  a  third  person  until  tlie  period  in 
which  an  appeal  may  be  taken  has  expired;  and  in  case  an 
appeal  is  taken  tlien  neither  party  shall  intermarry  with  a  third 
person  until  the  cause  has  been  fully  determined ;  and  it  shall 
be  unlawful  for  any  divorced  person  to  intermarry  with  any 
third  person  within  six  months  from  the  date  of  the  entry  of 
the  judgment  or  decree  granting  the  divorce,  or  in  case  an  ap- 
peal is  taken  it  shall  be  unlawful  to  contract  such  marriage 
until  judgment  be  rendered  on  said  appeal  in  the  Supreme 
Court.  All  marriages  contracted  in  violation  of  the  provisions 
of  this  section,  whether  contracted  within  or  without  this 
state,  shall  be  void." 

In  support  of  its  appeal,  the  state  relies  upon  the  two  gen- 
eral propositions :  That  a  marriage  valid  where  contracted  is 
valid  everywhere,  and  that  statutes  declaring  a  second  marriage 
unlawful,  pending  the  time  for  appeal  from  divorce  proceedings 
and  imposing  a  penalty  for  their  violation,  are  penal  in  their 
nature,  and  have  no  extraterritorial  effect.  The  general  doc- 
trine that  a  marriage  valid  where  contracted  is  valid  every- 
where has  so  often  been  declared  by  the  courts  and  reiterated 
by  text-writers  that  it  has  become  a  maxim  of  the  law.  But 
there  are  exceptions  to  the  rule  as  well  established  as  the  rule 
itself,  viz.,  (i)  incestuous  and  polygamous  marriages  prohib- 
ited by  natural  law;  and  (2)  marriages  prohibited  by  positive 

law. 

The  Victoria  marriage  now  under  consideration  may  fall 
within  the  second  exception.  Willey  v.  Willey,  22  Wash.  115, 
60  Pac.  145,  79  Am.  St.  923;  Putnam  v.  Putnam,  8  Pick. 
(Mass.)  433;  People  v.  Chase,  28  Hun  (N.  Y.)  310;  Van 
Voorhis  v.  Brintnall,  86  N.  Y.  18,  40  Am.  Rep.  505  ;  Thorpe  v. 
Thorpe,  90  N.  Y.  602,  43  Am.  Rep.  189,  and  other  cases  cited 
by  the  appellant,  to  the  effect  that  statutes  declaring  in  general 
terms  that  certain  marriages  contracted  in  violation  of  their 


STATE  V.   FENN.  93 

provisions  shall  be  void  and  have  no  extraterritorial  effect, 
have  no  application  here.  The  decisions  were  also  based  on  the 
general  language  of  the  acts  under  consideration;  the  courts 
holding  that  it  did  not  appear  that  the  resi)ective  legislatures 
intended  that  the  acts  should  apply  to  marriages  contracted 
without  the  state. 

The  statute  of  this  state,  however,  admits  of  no  such  con- 
struction. It  declares  in  direct  and  positive  terms  that  all  mar- 
riages contracted  in  violation  of  its  provisions,  "whether  con- 
tracted within  or  without  this  state  shall  be  void."  The  power 
of  the  state  to  declare  void  marriages  contracted  beyond  its  bor- 
ders, at  least  where  such  marriages  are  contracted  by  its  own 
citizens  in  violation  of  its  laws,  can  not  be  denied.  Thus  in 
Kinney  v.  Commonwealth,  30  Grat.  (Va.)  858,  32  Am.  Rep. 
690,  a  negro  man  and  a  white  woman  domiciled  in  Mrginia 
went  to  the  District  of  Columbia,  and  were  there  regularly 
married.  About  ten  days  thereafter  they  returned  to  Virginia, 
and  were  prosecuted  for  lewd  and  lascivious  cohabitation.  The 
Court  of  Appeals  of  that  state  ruled  that  the  marriage  in  the 
District  of  Columbia  was  a  mere  evasion  of  the  laws  of  the 
commonwealth  prohibiting  such  marriages,  and  could  not  be 
pleaded  in  bar  of  the  prosecution,  though  the  marriage  was 
confessedly  valid  in  the  District  of  Columbia,  where  contracted. 
In  Williams  v.  Gates,  2y  N.  C.  535,  it  was  held  that  a  marriage 
contracted  in  South  Carolina  by  a  citizen  of  North  Carolina, 
in  violation  of  the  statute  of  North  Carolina,  forbidding  tlie 
guilty  party  to  a  divorce  proceeding  to  marry  again,  was  void 
in  North  Carolina,  though  valid  in  South  Carolina  where  con- 
tracted. To  the  same  effect  see  Pennegar  v.  State,  87  Tenn. 
244,  10  S.  W.  305,  2  L.  R.  A.  703,  10  Am.  St.  648. 

In  State  v.  Kennedy,  76  N.  Car.  251,  22  Am.  Rep.  683,  it  was 
held  that  a  marriage  between  a  negro  man  and  a  white  woman 
domiciled  in  North  Carolina,  but  contracted  in  South  Carolina, 
in  violation  of  the  laws  of  North  Carolina,  was  void  in  North 
Carolina,  though  valid  in  South  Carolina.  On  the  other  hand, 
the  same  court  held  in  State  v.  Ross,  76  N.  Car.  242,  22  Am. 
Rep.  678,  that  a  marriage  contracted  between  a  negro  and  white 
person  in  South  Carolina  where  lawful,  both  parties  being  dom- 
iciled there,  was  valid  in  North  Carolina.  In  State  v.  Tutty 
(C.  C.)  41  Fed.  753,  7  L.  R.  A.  50,  it  was  held  that  a  marriage 
between  a  white  person  and  a  negro  domiciled  in  Georgia  is 
utterly  void  under  the  Georgia  statute,  though  valid  in  the  Dis- 
trict of  Columbia,  where  contracted.  In  Brook  v.  Brook,  9 
H.  L.  Cas.  193,  it  was  held  that  the  marriage  of  Britsh  subjects 
in  Denmark  is  invalid  in  England,  if  prohibited  by  British  law, 


94 


MARRIAGE. 


tliougli  the  marriage  was  valid  according  to  tlie  laws  of  Den- 
mark. 

It  will  thus  be  seen  that  a  state  law  regulathig  marriage  may 
and  does  have  an  extraterritorial  effect  vrken  the  legislature  so 
intends,  at  least  where  the  parties  to  the  marriage  have  their 
domicile  within  the  state ;  and  there  is  no  escape  from  the  con- 
clusion that  our  legislature  intended  that  all  marriages  con- 
tracted within  the  state,  and  all  marriages  contracted  without 
the  state  by  persons  domiciled  here,  for  the  purpose  of  evading 
our  laws,  should  be  null  and  void.  The  statute  is  undoubtedly 
broad  enough  to  include  all  marriages  contracted  within  the 
time  specified,  regardless  of  the  place  where  contracted  and 
regardless  of  tlie  domicile  of  the  parties;  but  we  do  not  think 
that  such  was  the  legislative  intent.  If  the  statute  should  be 
construed  to  avoid  marriages  contracted  in  other  states  by  citi- 
zens of  other  states  who  never  owed  allegiance  to  our  laws,  it 
is  the  most  drastic  piece  of  legislation  to  be  found  on  the  statute 
books  of  any  of  our  states.  As  we  have  shown,  the  general  rule 
is  that  the  validity  of  a  marriage  is  determined  by  reference  to 
the  law  of  the  place  where  contracted.  An  exception  to  the  gen- 
eral rule  is  sometimes  made  in  favor  of  the  law  of  the  domicile 
of  the  parties.  But  a  statute  declaring  marriages  void,  regard- 
less of  where  contracted  and  regardless  of  the  domicile  of  the 
parties,  would  be  an  anomaly  and  so  far  reaching  in  its  conse- 
quences that  a  court  would  "feel  constrained  to  limit  its  opera- 
tion, if  any  other  construction  were  permissible. 

We  are  satisfied  that  the  prohibition  in  question  was  directed 
solely  against  marriages  within  the  state,  or  by  persons  domi- 
ciled^ within  the  state,  but  contracted  in  other  states,  for  the 
purpose  of  evading  our  laws,  and  that  no  other  persons  or  mar- 
riages are  included  or  contemplated.  Within  the  above  rule 
the  information  before  us  does  not  contain  matter  which  con- 
stitutes a  defense,  for  it  does  not  appear  that  the  Victoria  mar- 
riage was  void.  If  the  parties  to  the  Victoria  marriage  had 
their  domicile  in  this  state  at  the  time  tlie  marriage  was  con- 
tracted, and  went  to  Victoria  for  the  purpose  of  evading  our 
laws  and  thereafter  returning  to  this  state,  such  marriage  was 
null  and  void,  and,  much  as  we  regret  it,  the  prosecution  must 
fail.  If,  on  the  other  hand,  the  parties  to  the  Victoria  marriage 
were  domiciled  there  at  the  time  the  marriage  was  contracted, 
such  marriage  does  not  fall  within  the  prohibition  of  our  stat- 
ute, and  is  valid. 

The  judgment  of  the  court  below  is  therefore  reversed,  with 
directions  to  overrule  the  demurrer  and  for  further  proceed- 
ings not  inconsistent  with  this  opinion. 


LANIIAM  V.   LANIIAM.  95 


LANHAM  V.  LAX  HAM. 

136  Wis.  360,  117  N.  W.  787,  17  L.  R.  A.  (X.  S.)  804,  128  Am. 

St.  10S5.   (1908.) 

Application  by  Sarah  A.  Lanham  for  an  allowance  for  her 
support  out  of  the  estate  of  James  W.  Lanham,  deceased,  on 
the  .{ground  that  she  was  his  widow.  Both  parties  were  citizens 
of  Wisconsin.  On  September  15,  1905,  she  obtained  a  judg- 
ment of  divorce  from  one  J.  R.  Sherman  for  tlie  i)urpose  of 
marrying  Mr.  Lanham,  who  was  then  84  years  old.  By  the 
statute  of  Wisconsin  the  parties  to  a  divorce  are  prohibited 
from  marrying  again  within  one  year  after  the  decree.  For 
the  purpose  of  evading  this  law,  the  parties  went  to  ^Michigan 
and  were  there  married  October  lo,  1905.  They  immediately 
returned  to  Wisconsin  and  cohabited  as  husband  and  wife 
until  ]\Ir.  Lanham's  death,  March  13,  1907.  On  ^larch  8,  1907, 
tlie  plaintiff  applied  to  the  county  judge  for  a  permit  to  marry 
Mr.  Lanham,  but  he  was  then  very  ill  and  no  ceremony  was 
ever  performed.  The  county  court  held  that  there  was  no  valid 
marriage  and  refused  tlie  allowance.  This  judgment  was  re- 
versed by  the  circuit  court  and  the  allowance  granted,  and  from 
this  judgment  Lanham's  heirs  appealed.     Reversed. 

WIXSLOW,  C.  J.  (after  stating  the  facts)  :  Section  2330, 
St.  1898,  as  amended  by  ch.  456,  p.  785,  Laws  of  1905,  pro- 
vides, among  other  things,  that,  "it  shall  not  be  lawful  for  any 
person  divorced  from  the  bonds  of  matrimony  by  any  court  of 
this  state  to  marry  again  within  one  year  from  the  date  of  the 
entry  of  such  judgment  or  decree  and  the  marriage  of  any 
divorced  person  solemnized  within  one  year  from  tlie  date  of 
the  entry  of  any  such  judgment  or  decree  of  divorce  shall  be 
null  and  void."  A  proviso  to  the  section  authorizes  the  circuit 
judge  to  grant  permission  to  the  divorced  parties  to  remarry 
within  the  year,  but  tliis  is  of  no  moment  here.  The  first  ques- 
tion is  whether  the  IMichigan  marriage  was  valid,  notwithstand- 
ing the  provisions  of  this  law. 

The  general  rule  of  law  unquestionably  is  that  a  marriage 
valid  where  it  is  celebrated  is  valid  everywhere.  To  this  rule, 
however,  there  are  two  general  exceptions,  which  are  equally 
well  recognized,  namely :  ( i )  IMarriages  which  are  deemed  con- 
trary to  the  law  of  nature  as  generally  recognized  byChristian 
civifized  states;  and  (2)  marriages  which  the  lawmaking  power 
of  the  forum  has  declared  shall  not  be  allowed  validity  on 
grounds  of  public  policy.  An  exhaustive  review  of  the  many 
and  somewhat  conflicting  authorities  upon  this  general  subject 


96  MARRIAGE. 

will  be  found  in  a  note  to  Hills  v.  State  in  57  L.  R.  A.,  at  p.  155 ; 
s.  c.  61  Nebr.  589,  85  N.  W.  836.  The  first  of  these  exceptions 
covers  polygamous  and  incestuous  marriages,  and  has  no  appli- 
cation here ;  and  the  question  presented  is  whetlier  the  case 
comes  within  the  second  exception. 

A  state  undoubtedly  has  the  power  to  declare  what  marriages 
between  its  own  citizens  shall  not  be  recognized  as  valid  in  its 
courts,  and  it  also  has  the  power  to  declare  that  marriages  be- 
tween its  own  citizens  contrary  to  its  established  public  policy 
shall  have  no  validity  in  its  courts,  even  though  they  be  cele- 
brated in  other  states,  under  whose  laws  they  would  ordinarily 
be  valid.  In  this  sense,  at  least,  it  has  power  to  give  extra- 
territorial effect  to  its  laws.  The  intention  to  give  such  effect 
must,  however,  be  cjuite  clear.  So  the  question  must  be,  in  the 
present  case,  whether  our  legislature  by  the  act  quoted  declared 
a  public  policy,  and  clearly  indicated  the  intention  that  the  law 
was  to  apply  to  its  citizens  wherever  they  may  be  at  the  time  of 
their  marriage.  To  our  minds  there  can  be  no  doubt  that  the 
law  was  intended  to  express  a  public  policy.  There  have  been 
many  laws  in  other  states  providing  that  the  guilty  party  in  a 
divorce  action  shall  not  remarry  for  a  term  of  years,  or  for 
life,  and  these  laws  have  generally  been  regarded  merely  as 
intended  to  regulate  the  conduct  of  the  divorced  party  within 
the  state,  and  not  as  intended  to  follow  him  to  another  juris- 
diction and  prevent  a  marriage  which  would  be  lawful  there; 
in  other  words,  they  impose  a  penalty  local  only  in  its  effect. 
Under  this  construction  tlie  remarriage  of  such  guilty  party  in 
another  state  has  generally  been  held  valid,  notwithstanding  the 
prohibition  of  the  local  statute.  Of  this  class  are  the  cases  of 
Frame  v.  Thormann,  102  Wis.  654,  79  N.  W.  39,  Van  Voorhis 
V.  Brintnall,  86  N.  Y.  18,  40  Am.  Rep.  505,  and  State  v.  Shat- 
tuck,  69  Vt.  403,  38  Atl.  81,  40  L.  R.  A.  428,  60  Am.  St.  936, 
and  others  which  might  be  cited. 

It  is  very  clear,  however,  that  the  statute  under  consideration 
is  in  no  sense  a  penal  law.  It  imposes  a  restriction  upon  the  re- 
marriage of  both  parties,  whether  innocent  or  guilty.  Upon 
no  reasonable  ground  can  this  general  restriction  be  explained, 
except  upon  the  ground  that  the  legislature  deemed  that  it  was 
against  public  policy  and  good  morals  tliat  divorced  persons 
should  be  at  liberty  to  immediately  contract  new  marriages. 
The  inference  is  unmistakable  that  the  legislature  recognized 
the  fact  that  the  sacredness  of  marriage  and  the  stability  of  the 
marriage  tie  lie  at  the  very  foundation  of  Christian  civilization 
and  social  order ;  that  divorce,  while  at  times  necessary,  should 
not  be  made  easy,  nor  should  inducement  be  held  out  to  pro- 


LAN  HAM  V.   LANHAM.  97 

cure  it ;  that  one  of  the  frequent  causes  of  marital  disagreement 
and  divorce  actions  is  the  desire  on  the  part  of  one  of  the  par- 
ties to  marry  another;  that  if  tlicre  be  Uberty  to  immediately 
remarry  an  inducement  is  thus  offered  to  those  who  have  be- 
come tired  of  one  union,  not  only  to  become  faithless  to  their 
marriage  vows,  but  to  collusively  procure  the  severance  of  that 
nuion  under  the  forms  of  law  for  the  purpose  of  experimenting 
with  another  partner,  and  perhaps  yet  another,  thus  accom- 
plishing what  may  be  called  progressive  polygamy ;  and,  finally, 
that  this  means  destruction  of  the  home  and  debasement  of 
public  morals.  In  a  word,  the  intent  of  the  law  plainly  is  to 
remove  one  of  the  most  frequent  inducing  causes  for  the  bring- 
ing of  divorce  actions.  This  means  a  declaration  of  public  pol- 
icy, or  it  means  nothing.  It  means  that  the  legislature  regarded 
frequent  and  easy  divorce  as  against  good  morals,  and  that  it 
proposed,  not  to  punish  the  guilty  party,  but  to  remove  an 
inducement  to  frequent  divorce. 

To  say  that  the  legislature  intended  such  a  law  to  apply  only 
while  the  parties  are  within  the  boundaries  of  the  state,_  and 
that  it  contemplated  that  by  crossing  the  state  line  its  citizens 
could  successfully  nullify  its  terms,  is  to  make  the  act_ essen- 
tially useless  and  impotent,  and  ascribe  practical  imbecility  to 
the  lawmaking  power.  A  construction  which  produces  such  an 
effect  should  not  be  given  it,  unless  the  terms  of  the  act  make  it 
necessary.  The  prohibitory  terms  are  broad  and  sweeping; 
they  declare,  not  only  that  it  shall  be  unlawful  for  divorced 
persons  to  marry  again  within  the  year,  but  that  any  such  mar- 
riage shall  be  null  and  void.  There  is  no  limitation  as  to  the 
place  of  the  pretended  marriage  in  express  terms,  nor  is  lan- 
guage used  from  which  such  a  limitation  can  naturally  be  im- 
plied. It  seems  unquestionably  intended  to  control  the  con- 
duct of  the  residents  of  the  state,  whether  tliey  be  within  or 
outside  of  its  boundaries. 

Such  being,  in  our  opinion,  the  evident  and  clearly  expressed 
intent  of  the  legislature,  we  hold  that  when  persons  domiciled 
in  this  state,  and  who  are  subject  to  the  provisions  ofthe  law, 
leave  the  state  for  the  purpose  of  evading  those  provisions,  and 
go  through  the  ceremony  of  marriage  in  another  state,  and  re- 
turn to  their  domicile,  such  pretended  marriage  is  within  the 
provisions  of  the  law,  and  will  not  be  recognized  by  the  courts 
of  tliis  state.  Furdier  than  this  we  are  not  required  to  go. 
This  view  is  sustained  by  the  following  cases  :  Brook  v.  Brook, 
9  H,  L.  Cases,  193;  Sussex  Peerage  Case,  11  Clark  &  F.  85 ; 
State  V.  Tutty  (C.  C.)  41  Fed.  753,  7  L.  R.  A.  50;  Pennegar 
7 — Cases  Dom.  Rel. 


98  MARRIAGE. 

V.  State,  Sy  Tenn.  244,  10  S.  W.  305,  2  L.  R.  A.  703,  10  Am. 
St.  648;  McLennan  v.  JMcLennan,  31  Ore.  480,  50  Pac.  802, 

38  L.  R.  A.  863,  65  Am.  St.  835 ;  Estate  of  Stull,  183  Pa.  625, 

39  Atl.  16,  39  L.  R.  A.  542,  6^  Am.  St.  7/6;  Kruger  v.  Kruger 
(Super.  Ct.  111.)  36  Nat.  Corp.  Rep.  442. 

Another  view  of  the  question,  leading  to  the  same  result,  has 
been  suggested  to  our  minds,  which  .will  be  stated.  The  statute 
cited  is  an  integral  part  of  the  divorce  law  of  this  state,  and  in 
legal  effect  enters  into  every  judgment  of  divorce.  This  being 
so,  must  not  any  judgment  of  divorce  be  construed  as  contain- 
ing an  inhibition  upon  the  parties,  rendering  them  incapable  of 
legal  marriage  within  a  year,  which  must  be  given  "full  faith 
and  credit"  in  all  other  states,  under  §  i,  art.  4,  of  the  Consti- 
tution of  the  United  States?  And  if  it  be  entitled  to  receive 
such  faith  and  credit,  how  can  a  marriage  within  another  state 
be  considered  valid  anywhere?  Are  not  the  parties  incapable 
of  contracting  such  a  marriage  anywhere,  for  the  reason  that 
they  have  not  yet  been  relieved  of  their  incapacity  to  marry 
another,  resulting  from  their  former  marriage,  or,  in  other 
words,  for  the  reason  that  their  divorce  Is  not  complete  until 
the  expiration  of  the  year  ?  We  suggest  tliese  questions,  with- 
out definitely  expressing  an  opinion  upon  them  or  making  them 
a  ground  of  decision. 

The  Michigan  marriage  being  held  A'oid,  the  question  recurs 
vi^hether  the  finding  that  there  was  a  common-law  marriage,  re- 
sulting from  the  fact  that  the  parties  lived  and  cohabited  to- 
gether as  man  and  wife  for  about  six  months,  can  be  sustained 
This  must  be  answered  in  the  negative.  This  court  has  held 
that,  where  cohabitation  is  illegal  in  its  inception,  the  relation 
between  the  parties  will  not  be  transformed  Into  marriage  by 
evidence  of  continued  cohabitation,  or  by  any  evidence  which 
falls  short  of  establishing  either  directly  or  circumstantially 
the  fact  of  an  actual  contract  of  marriage  after  the  bar  has  been 
removed.  Williams  v.  Williams,  46  Wis.  464,  i  N.  W.  98,  32 
Am.  Rep.  722;  Spencer  v.  Pollock,  8^  Wis.  215,  53  N.  W.  490, 
17  L.  R.  A.  848;  Thompson  v.  NIms,  83  Wis.  261,  53  N.  W. 
502,  17  L.  R.  A.  847.  There  was  no  such  evidence  here.  At 
most  the  evidence  only  shows  that  the  parties  continued  to  live 
together  after  the  expiration  of  the  year  in  the  manner  of  hus- 
band and  wife,  and  talked  about  a  remarriage,  which  never 
took  place  on  account  of  the  husband's  illness  and  death.  The 
evidence  in  fact  rebuts  any  inference  of  remarriage,  rather  than 
supports  it. 

Judgment  reversed,  and  action  remanded  to  the  circuit  court, 
with  directions  to  affirm  the  judgment  of  the  county  court. 

Siebecker,  J.,  dissents. 


CANALE  V.    PEOPLE.  99 

b.    Marriages  Void  Where  Celebrated. 

CANALE  V.  PEOPLE. 

177  III.  219,  52  N.  E.  310. 

Prosecution  of  Carmelo  Canale  for  bigamy.  Defendant  was 
first  married  in  1891  in  Italy  to  Rosalie  LoCascio,  the  parties 
being  then,  respectively,  15  and  13  years  of  age.  The  parties 
cohabited  in  Italy  for  several  months,  when  the  defendant 
abandoned  the  woman  and  came  to  America,  and  was  married, 
in  1897,  in  Chicago,  to  one  Giuseppa  Rimagro.  The  prosecu- 
tion was  for  this  second  marriage.  It  was  shown  that  by  the 
Italian  law  the  marriage  in  Italy  was  void  because  of  the  in- 
fancy of  the  parties  and  the  failure  to  observe  the  requirements 
as  to  the  marriage  of  infants  such  as  consent  of  parents,  etc. 
The  defendant  was  convicted  and  judgment  was  entered  on  the 
verdict.     Reversed. 

CARTER,  C.  J.  (after  stating  the  facts)  :  The  vital  ques- 
tion presented  for  our  determination  in  this  case  is,  was  the 
alleged  first  marriage  of  plaintiff  in  error  in  Italy  absolutely 
void?  Counsel  for  the  people  contend  that  "the  proof  of  a 
marriage  in  fact  in  another  state,  followed  by  cohabitation,  is 
sufficient  proof  of  the  validity  of  the  marriage,  without  evi- 
dence as  to  the  law  of  the  place  where  the  marriage  was  cele- 
brated" ;  citing  numerous  authorities. 

It  may  be  conceded  that  it  is  the  general  rule  that,  if  the 
celebration  of  the  marriage  is  proved  by  witnesses  who  were 
present,  it  is  not  necessary  that  any  preliminary  steps  required 
by  law  should  also  be  shown,  as  it  will  be  presumed  that  the 
officiating  person  performed  his  duty,  and  proceeded  only  when 
his  authority  was  complete,  i  Bish.  ]\Iar.  &  Div.  §  450.  Still, 
when  there  is  direct  and  positive  proof  as  to  the  invalidity  of 
the  marriage,  this  presumption  can  not  prevail.  The  only  proof 
offered  by  the  people  in  respect  to  the  alleged  first  marriage 
was  that  it  was  solenmlzed  in  a  church  by  the  officiating  clerg}'- 
man  according  to  the  rites  of  such  church,  and  it  was  shown 
that  no  other  ceremony  was  performed. 

In  the  absence  of  proof  as  to  the  law  of  the  kingdom  of  Italy 
relating  to  marriage,  such  proof  would  be  sufficient  to  establish 
the  marriage.  But  in  this  case  we  are  confronted  with  a  num- 
ber of  provisions  of  the  Civil  Code  of  Italy  requiring  tliat  the 
contracting  parties  be  of  a  certain  age,  or  else  the  consent  of 
tlie  parents;  notice  to  be  posted  by  a  certain  official,  which 


lOO  MARRIAGE. 

could  not  be  done  without  the  consent  of  tlie  parents  duly  ob- 
tained ;  and  then  a  celebration  in  the  town  hall  in  a  public  man- 
ner before  a  certain  civil  official, — none  of  which  provisions 
are  shown  to  have  been  complied  with.  To  this  must  be  added 
the  testimony  of  the  Italian  consul,  who  qualified  as  one  learned 
in  the  Italian  law,  and  testified,  without  objection,  to  the  effect 
that  a  compliance  with  all  these  provisions  was  absolutely  es- 
sential to  a  valid  marriage  in  Italy,  and  that  there  was  no  other 
legal  mode  in  which  a  marriage  could  be  celebrated  or  con- 
tracted to  make  it  valid  in  that  kingdom,  and  that  by  no  subse- 
quent acts  could  it  be  ratified  or  validated,  it  being  wholly  null 
and  void. 

It  is  urged  by  counsel  for  the  people  that,  notwithstanding 
the  failure  to  observe  such  provisions,  the  marriage  is  still 
valid  unless  the  law  of  the  state  where  it  was  celebrated  ex- 
pressly makes  it  invalid  for  lack  of  such  formalities ;  and  it  is 
claimed  that  tlie  sections  of  the  Italian  code  quoted  do  not  show 
that  such  requirements  are  exclusive  or  essential.  While  this  is, 
in  general,  true  as  to  our  marriage  laws,  still  courts  uniformly 
take  notice  of  the  construction  given  to  foreign  statutes  by  the 
foreign  tribunals,  and,  to  be  informed  of  such  construction, 
will  receive  the  testimony  of  witnesses  learned  in  the  foreign 
law.  Hoes  v.  Van  Alstyne,  20  111.  201.  The  evidence  of  the 
Italian  consul  is  uncontradicted  as  to  the  construction  and 
effect  given  to  these  statutes  in  Italy. 

It  is  a  general  rule  that  a  marriage  invalid  where  it  is  cele- 
brated is  everywhere  invalid,  i  Bish.  Mar.  &  Div.,  §  390.  The 
only  exceptions  to  this  rule  relate  to  parties  sojourning  in  a 
foreign  country,  who  may,  in  certain  cases,  contract  a  valid 
marriage  without  celebrating  it  according  to  the  local  require- 
ments. But  the  plaintiff  in  error  and  said  Rosalie  w^ere  both 
Italians,  and,  of  course,  do  not  come  within  such  exceptions. 
In  McDeed  v.  McDeed,  67  111.  545,  it  was  said  that  the  law  of 
the  state  where  the  marriage  takes  place  must  control  as  to  the 
validity  of  the  marriage;  and  in  Weinberg  v.  State,  25  Wis. 
370,  on  an  indictment  for  polygamy,  where  the  first  alleged 
marriage  was  in  Prussia,  and  it  appeared  that  by  Prussian  law 
a  marriage,  to  be  valid,  must  be  entered  into  as  a  civil  contract 
before  a  civil  magistrate,  it  was  held  that  proof  of  a  religious 
ceremony  will  raise  no  presumption  that  a  civil  ceremony  has 
been  performed. 

If  this  first  marriage  were  treated  as  only  voidable,  andnot 
void,  both  parties  being  at  the  time  under  the  age  prescribed 
by  the  laws  of  Italy,  still,  when  they  arrived  at  the  age  of  con- 
sent, either  of  them  would,  at  the  common  law,  have  had  the 


NORCROSS  V.   KORCROSS.  lOI 

lawful  right  to  disaffirin  it.  Plaintiff  in  error  did  disaffirm  it 
by  ceasing  to  cohabit  with  the  said  Rosalie  three  months  after 
the  alleged  marriage,  and  by  abandoning  lier,  and  by  afterwards 
marrying  another  woman,  with  wliom,  after  he  became  of  mar- 
riageable age,  he  has  lived  and  cohabited  as  his  wife.  But  the 
proof  is  uncontradicted  that  such  marriages  are  absolutely  void 
in  Italy,  and,  whatever  may  be  the  rule  of  law  as  to  such  mar- 
riages celebrated  in  this  state,  still,  the  foreign  law  and  its  con- 
struction being  shown,  we  should  follow  that  law,  and  espe- 
cially so  in  favor  of  the  innocence  of  the  accused.  As  tlie  rec- 
ord shows  there  was  no  prc\-ious  vaHd  marriage,  the  conviction 
can  not  be  sustained.  The  judgment  is  reversed,  and  the  cause 
remanded,  with  directions  to  discharge  the  accused. 
Reversed  and  remanded. 


NORCROSS  V.  NORCROSS. 
155  Mass.  425,  29  N.  E.  506.    (1892.) 

Libel  for  divorce  by  IMaria  Norcross  against  Alvin  C.  Nor- 
cross.  The  parties  were  domiciled  in  New  Hampshire,  and 
while  alone  in  tlie  house  of  libellant's  father  entered  into  a  mu- 
tual agreement  of  marriage.  Thereupon  libellee  went  to  Bos- 
ton for  employment.  Some  months  later  he  returned  to  New 
Hampshire,  and  the  parties  left  libellant's  father's  home  for 
Boston  with  tlie  understanding  that  on  their  way  they  were  to 
be  married  by  a  clergA'man  at  Concord,  N.  H.  They  notified 
her  father  that  the  marriage  had  been  solemnized  at  Concord. 
There  was,  however,  no  such  marriage.  The  parties  cohabited 
as  husband  and  wife  in  IMassachusetts,  and  on  two  occasions 
lived  together  openly  as  such  for  a  few  days  in  New  York 
while  visiting  tliere.  Libel  dismissed  on  the  ground  that  the 
parties  were  never  lawfully  married. 

Affirmed. 

ALLEN,  J. :  In  this  case,  tlie  libelant  and  the  libelee  both 
testified,  so  that  the  court  was  not  left  to  draw  inferences 
merely  from  circumstances.  It  was  found  as  a  fact  that  there 
was  no  ceremony  of  marriage  in  the  presence  of  the  libelant's 
father,  in  New  Hampshire,  and  there  was  no  evidence  of  any 
such  ceremony  elsewhere  in  the  presence  of  any  person  author- 
ized or  supposed  to  be  authorized  to  solemnize  a  marriage. 

According  to  the  law  of  New  Hampshire,  as  declared  in 
Dunbarton  v.  Franklin,  19  N.  H.  257,  if  parties  enter  into  a 


I02  MARRIAGE. 

contract  of  marriage  between  themselves,  and  live  together  in 
accordance  with  it,  such  facts  do  not  constitute  a  marriage. 
We  are  referred  to  no  statute  or  decision  which  shows  that  the 
law  of  tliat  state  has  since  been  changed.  The  finding  that  there 
was  no  marriage  under  the  laws  of  New  Hampshire  was  there- 
fore well  warranted.  The  law  of  ]\Iassachusetts  is  similar,  and 
there  was  nothing  to  show  any  formal  ceremony  of  marriage 
here.    Commonwealth  v.  IMunson,  127  Mass.  459. 

If  the  acts  which  took  place  in  New  Hampshire  had  taken 
place  in  New  York,  they  probably  would  have  been  held  to  con- 
stitute a  marriage  there.  Brinkley  v.  Brinkley,  50  N.  Y.  184, 
197,  198;  Hynes  v.  McDermott,  82  N.  Y.  41,  46.  But  there 
was  no  evidence  that  the  parties  while  in  New  York  entered 
into  any  contract  of  marriage  between  themselves.  The  sub- 
stance of  what  was  proved  is  that  the  parties,  without  being 
married,  were  living  together  as  husband  and  wife  in  ]\Iassa- 
chusetts,  and  while  doing  so  they  twice  went  to  New  York  to- 
gether, and  continued  in  the  same  apparent  relation, — at  one 
time  for  three  days,  and  at  another  for  one  week.  We  have  not 
been  referred  to  any  decision  in  New  York  which  holds  that 
these  facts  would  either  constitute  marriage  there,  or  afford  a 
conclusive  presumption  of  it ;  and  we  are  slow  to  believe  that 
acts  which  in  Alassachusetts  were  illicit  will  be  deemed  matri- 
monial merely  by  being  continued  without  any  new  sanction  by 
residents  of  Massachusetts  while  transiently  across  the  state 
line.    Randlett  v.  Rice,  141  Mass.  385,  394,  6  N.  E.  238. 

Decree  affirmed. 


6.  Proof  of  Marriage. 

WILLIAMS  V.  HERRICK. 

21  R.  I.  401,  43  Atl.  1036,  79  Am.  St.  809.    (1899.) 

Bill  by  George  W.  Williams  and  others  against  William  H. 
Herrick,  administrator  of  the  estate  of  Amos  W.  Olney,  and 
others,  to  avoid  a  trust.  The  case  was  heard  on  the  question  of 
legitimacy  turning  upon  the  existence  of  a  marriage  between 
Moses  and  Martha  W.  Olney.  Held  that  the  marriage  was  not 
established.  .^ 

MATTESON,  C.  J. :  We  do  not  think  the  evidence  estab- 
lishes the  existence  of  a  marriage  between  Moses  Olney  and 
IMartha  W.  Olney  prior  to  the  ceremonial  marriage  between 
them  on  November  4,  1817,  a  short  time  before  the  death  of 


WILLIAMS  V.   HERRICK.  I03 

Moses.  It  is  not  shown  tliat  any  contract  of  marriage  pre- 
ceded the  cohabitation,  which  appears  to  have  begun  on  tlie 
death  of  Gideon  Olney,  the  father  of  Moses,  in  1798,  and  to 
have  continued  till  the  death  of  Moses,  in  November,  1817. 
But  we  are  asked  to  infer  a  marriage  from  such  cohabitation, 
the  birth  of  children  during  it,  and  the  fact  that  these  children 
and  their  mother  were  known  by  the  name  of  Olney. 

There  is  doubtless,  as  contended  in  support  of  the  claim  of 
marriage,  a  certain  presumption  of  marriage,  especially  in  cases 
involving  legitimacy,  arising  from  long-continued  cohabitation. 
But,  in  order  to  constitute  evidence  from  which  a  marriage 
may  be  inferred,  the  origin  of  the  cohal)itation  must  have  been 
consistent  with  a  matrimonial  intent,  and  the  cohabitation  must 
have  been  of  such  a  character,  and  the  conduct  of  the  parties 
such,  as  to  lead  to  the  belief  in  the  community  that  a  marriage 
existed,  and  thereby  to  create  the  reputation  of  a  marriage. 
Association  v.  Carpenter,  17  R.  I.  720,  24  Atl.  578;  Common- 
wealth V.  Stump,  53  Pa.  St.  132;  Reading  Fire  Ins.  &  Trust 
Co.'s  Appeal,  113  Pa.  St.  204,  6  Atl.  60;  Brinkley  v.  Brinkley, 
50  N.  Y.  184;  Wallace's  Case,  49  N.  J.  Eq.  530,  25  Atl.  260; 
McKenna  v.  IMcKenna,  73  111.  App.  64;  Stans  v.  Baitey,  9 
Wash.  115,  37  Pac.  316. 

Inasmuch  as  the  matters  which  are  the  subject  of  investiga- 
tion had  their  beginning  a  century  ago,  and  ended  in  the  early 
part  of  the  present  century,  the  ascertainment  of  the  facts  con- 
cerning them  is  attended  with  great  embarrassment.  There  are 
no  contemporaneous  witnesses.  The  court  is  obliged  to  depend 
upon  the  uncertain  light  of  family  tradition.  Considerable 
testimony  of  this  kind  has  been  introduced  to  the  effect  that 
prior  to  the  ceremonial  marriage  it  was  not  considered  in  the 
family  that  Moses  and  IMartha  were  married,  and  we  think 
that  this  view  is  confirmed  by  a  consideration  of  the  entire 
evidence.  In  support  of  the  claim  of  a  marriage  prior  to  the 
ceremonial  marriage,  it  is  contended  that  ]\Ioses  desired  to 
marry  IMartha,  who  was  his  cousin,  and  living  in  his  father's 
family  as  a  household  servant ;  that  his  father  opposed  the  mar- 
riage because  of  the  inferior  social  station  of  Martha,  and 
threatened  to  disinherit  Closes  if  he  persisted  in  his  purpose  of 
marriage.  But,  if  this  be  the  fact,  and  INIoses  and  Martha  had 
a  matrimonial  intent,  it  is  difficult  to  understand  why,  on  the 
death  of  the  father,  when,  so  far  as  appears,  the  cohabitation 
began,  Moses  and  Martha  should  not  have  been  regularly  mar- 
ried, and  thus  placed  their  relations  beyond  a  doubt.  \Ve  can 
not  help  feeling  that  the  association  between  Moses  and  Mar- 
tha was  not  of  the  character  now  claimed  for  it,  and  that  the 


I04  MARRIAGE. 

fatlier's  disapproval  of  it  was  for  that  reason.  This  view  is 
strengthened  by  the  taunts  which  the  testimony  shows  were 
uttered  by  other  school  children  to  the  children  of  Moses  and 
Martha  that  their  father  and  mother  were  not  married,  by  the 
fact  that  Martha  led  a  secluded  life,  and  that  there  appears  to 
have  been  but  little  association  between  her  and  tlie  members 
of  the  Olney  family  until  after  the  ceremonial  marriage,  and, 
finally,  by  the  fact  "of  the  ceremonial  marriage;  for,  even  if  it 
be  conceded  that  this  marriage  was  at  the  suggestion  of  ]\Ir.  Pa- 
bodie,  and  that  it  was  entered  into  to  enable  ]\Iartha  and  her 
children  to  receive  the  property  of  Moses,  which,  in  view  of  his 
power  to  give  it  to  them  by  will,  as  he  did,  is  not  a  very  satis- 
factory explanation,  it  is  an  admission  of  the  strongest  charac- 
ter that  their  previous  relations  had  not  been  those  of  marriage, 
but  illicit. 

And  tlie  fact  that  a  marriage  was  deemed  necessary  by  a 
friend,  who  advised  it,  is  evidence  that  there  was  no  general  and 
uniform  reputation  in  the  community  that  they  were  married. 
To  prove  a  marriage  by  cohabitation  and  reputation,  the  reputa- 
tion must  be  general  and  uniform.  Clayton  v.  War  dell,  4  N.  Y. 
230,  236;  Brinkley  v.  Brinkley,  50  N.  Y.  184,  198;  Earnum  v. 
Barnum,  42  Md.  251,  297;  White  v.  White,  82  Cal.  427,  23 
Pac.  276. 

We  also  think  that  the  great  preponderance  of  evidence  is  in 
favor  of  the  claim  that  Martha  Olney  was  Martha  Williams, 
the  daughter  of  Martha  Olney  Williams  and  Zebedee  Williams, 
and  not  Martha  Rhodes,  the  daughter  of  Peleg  Rhodes.  We 
have  reached  this  conclusion  independently  of  the  paper  enti- 
tled ":\Ionumental  Genealog}',"  offered  by  the  complainants, 
which,  though  we  are  inclined  to  consider  it  admissible  as  evi- 
dence, was  objected  to  by  the  Rhodes  claimants  as  incompe- 
tent. 


STATE  V.  COOPER. 
103  Mo.  266,  15  S.  W.  327.    (1891.) 
Indictment  for  bigamy.  Defendant  was  convicted.  Reversed. 

THOMAS,  J. :  The  defendant  was  tried  for  and  convicted  of 
bigamy  in  the  criminal  court  of  Buchanan  county,  and  was  sen- 
tenced to  imprisonment  in  the  penitentiary  for  four  years  and 
six  months,  and  the  case  is  here  on  his  appeal.  The  testimony 
shows  that  in  the  early  part  of  April,  1887,  defendant  told  a 
friend  of  his  that  he  intended  marrying  Lavina  Atkins,  who 


STATE  V.  COOPER.  I05 

was  at  the  time  a  widow.  That  shortly  after  that,  in  the  latter 
part  of  the  same  month,  he  represented  that  they  had  married, 
and  they  commenced  living  and  cohabiting  together  as  man 
and  wife,  and  he  introduced  her  and  held  her  out  to  the  public, 
and  in  every  respect  treated  her,  as  his  wife,  until  a  few  days 
before  his  marriage  with  Eva  Alexander.  In  the  latter  part  of 
April,  1887,  he  went  with  Lavina  Cooper  (formerly  Atkins) 
to  Rochester,  in  Andrew  county,  on  a  visit  to  her  father,  and 
there  stated  that  tliey  had  married  in  Kansas  a  short  time  be- 
fore. He  represented  to  Nelson  Graves,  Lavina  Cooper's 
father,  that  they  had  had  some  trouble  marrying;  that  they 
had  to  go  to  Kansas  to  get  their  license;  tliat  he  was  under 
age,  and  their  parents  would  not  let  them  get  married  here ; 
and  he  had  to  make  two  trips  to  Kansas, — one  to  get  the 
license,  and  another  to  get  married.  After  that  he  held  her 
out  to  his  and  her  relatives,  and  to  the  public  generally,  as 
his  wife,  and  they  lived  together  as  man  and  wife  at  various 
places  in  St.  Joseph.  During  the  time  he  had  some  transac- 
tions in  regard  to  the  transfer  of  some  real  estate,  which  they 
executed  as  man  and  wife.  Their  conduct  and  relations  to- 
ward each  other  during  the  entire  time,  covering  a  period  of 
over  two  years  and  a  half,  was  that  of  man  and  wife.  On  No- 
vember 26,  1889,  he  was  married  in  Buchanan  county  to  Eva 
Alexander.  Shortly  after  this  he  was  arrested  on  a  charge  of 
bigamy.  The  court,  at  the  instance  of  the  state  and  on  its  own 
motion,  instructed  the  jury  as  follows:  [Here  the  court  sets 
out  the  instructions  given,  and  those  requested  by  defendant 
and  refused.   Instruction  No.  3  was  as  follows: 

"(3)  The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  defendant  and  Lavina  C.  Cooper,  alias 
Lavina  C.  Atkins,  for  any  long  period  of  time,  lived  together 
publicly  as  husband  and  wife,  that  he  passed  himself  for  her 
husband  and  she  for  his  wife,  introduced  himself  and  herself 
to  his  family  and  his  friends  and  the  public  as  her  husband 
and  she  as  his  wife,  cohabited  with  her  as  his  wife  and  he  as 
her  husband,  and  held  himself  and  herself  out  to  the  public 
generally  as  sustaining  the  relations  of  husband  and  wife  by 
his  general  acts  and  conduct,  then  the  jury  are  instructed  that 
the  law  presumes  that  they  were  married  within  the  meaning 
of  the  law,  and  that  they  are  husband  and  wife,  and  tliis  pre- 
sumption is  conclusive  upon  the  defendant.unless  he  shall  sat- 
isfv  the  jury  by  evidence  in  the  case,  to  their  reasonable  satis- 
faction, that  he  was  not  married  to  Lavina  C.  Cooper,  his  re- 
puted first  wife;  and  that  unless  he  shall  so  satisfy  tlie  jury 
they  will  convict  him  as  charged." 


I06  MARRIAGE. 

The  defendant  excepted,  and  urged  that  the  court  erred  in 
giving  tlie  instructions  given  as  well  as  in  refusing  those  re- 
quested by  him.] 

We  are  clearly  of  the  opinion  tliat  instruction  No.  3  given 
at  tlie  instance  of  the  state  did  not  declare  the  law  properly. 
The  fact  of  the  marriage  of  the  defendant  and  L.  C.  Atkins 
must  be  proved  before  he  can  be  punished  for  bigamy.    This 
marriage  is  at  least  a  part  of  the  corpus  delicti,  without  proof 
of  which  no  conviction  can  be  had.   The  fact  that  a  man  and 
woman  live  together  for  a  long  time  publicly,  pass  and  intro- 
duce each  other  and  cohabit  as  husband  and  wife,  and  say  they 
are  married,  is  evidence  tending  to  prove  a  marriage,  and  may 
even  raise  a  presumption  that  the  parties  were  in  fact  married ; 
but  this  presumption  is  one  of  fact,  and  not  of  law.    It  is  the 
province  of  the  jury,  and  not  the  court,  to  determine  what 
probative  force  these  facts  have  in  a  given  case.   No  doubt  the 
trial  court  gave  instruction  No.  3,  supra,  upon  the  authority 
of  Cargile  v.  Wood,  63  Mo.  501,  and  Dyer  v.  Brannock,  66  ]Mo. 
391 ;  but  tliese  cases  involved  legitimacy,  and  there  is  a  marked 
distinction  between  suits  in  which  legitimacy  of  children  or  tlie 
sanctity  of  the  domestic  relation  is  at  issue  and  those  in  which 
the  effort  is  to  impose  upon  defendant  penalties  attachable  to 
an  illegal  marriage.   In  the  first  case,  we  have  in  favor  of  the 
marriage  the  presumption  of  legitimacy  as  well  as  that  of  good 
faith ;  in  the  second  case,  we  have  against  the  marriage  the  pre- 
sumption of  innocence.  We  can  not,  therefore,  transfer  the  de- 
cision in  the  last  class  of  cases  to  the  former,    i  Whart.,  Ev., 
§  85.   ]\Ir.  Bishop  says:   "It  is  commonly  said,  in  this  issue  of 
polygamy,  a  fact  of  marriage,  in  distinction  from  the  sort  of 
presumptive  one  which  suffices  in  civil  cases,  must  be  shown. 
But  an  examination  of  the  question  discloses  the  principle  to  be 
that  while  commonly  in  civil  cases  the  proof  of  marriage  is 
based  on  the  presumption  of  morality  and  obedience  to  law, 
whereby,  if  parties  are  or  have  been  cohabiting  as  husband 
and  wife,  they  are  deemed  to  be  honestly  and  innocently  so, 
therefore  married ;  whereas,  when  this  presumption  is  attempted 
to  be  invoked  in  a  polygamy  case,  it  comes  in  conflict  with  the 
like  presumption  as  to  the  second  marriage  and  living  together ; 
so,  as  presumption  nullifies  presumption,  other  proof  is  re- 
quired."  I  BIsh.  Mar.  &  DIv.  §  60,  and  cases  cited ;  Common- 
wealth V.  Jackson,  11  Bush.  (Ky.)  679. 

The  fact  of  marriage  must  be  proved  in  a  criminal  case.  It 
need  not  be,  however,  proved  by  direct  evidence,  but  may  be 
established  like  any  other  fact,  by  circumstantial  evidence. 
Cohabitation,  and  the  holding  of  each  other  out  publicly  as  hus- 


IN  RE  STEWART.  I07 

band  and  wife,  as  well  as  the  admissions  of  the  parties,  are 
facts  possessing  evidential  force,  and  are  admissible  in  evidence 
to  prove  a  marriage.  In  a  case  like  this,  however,  where  de- 
fendant is  presumed  to  be  innocent  of  the  crime  of  bigamy,  the 
court  has  no  right  to  tell  the  jury  how  much  evidence  it  takes 
to  change  the  burden  of  proof  from  the  state  to  the  defendant. 
Indeed,  the  burden  of  proof  is  not  shifted  at  all,  but  the  pre- 
sumption of  the  innocence  of  the  accused  continues  with  him 
till  his  guilt  is  established  beyond  a  reasonable  doubt.  For  this 
error  tlic  instruction  under  review  was  not  the  law  in  tliis 
case.     *     *     * 

Judgment  reversed  and  cause  remanded. 


RIGHTS,   DUTIES   AND   TRANSACTIONS   OF   HUS- 
BAND AND  WIFE  AS  BETWEEN  THEMSELVES. 

1.  Right  to  Fix  Domicile. 

Franklin  v.  Franklin,   190  Mass.  349,  'j'j  N.  E.  48, 

post,  p.  171. 
De  Vry  v.  De  Vry,  (Okla.),  148  Pac.  840,  post,  p.  174. 

2.  Duty  of  Husband  to  Support  Wife. 

See  cases  under  title  "Wife's  Contracts  for  Necessaries,"  etc. 

IN  RE  STEWART. 
(N.  J.  Eq.),  22  Atl.  122.    (1891.) 

BIRD,  V.C. :  S,  being  a  married  man,  became  Insane.  Dur- 
ing such  insanity  his  wife  died,  leaving  a  last  will,  in  and  by 
which,  among  other  things,  she  directed  tliat  her  Just  debts  and 
funeral  expenses  should  be  paid.  The  guardian  of  the  lunatic 
paid  the  funeral  expenses  of  the  wife  out  of  the  estate  of  the 
husband.  The  question  is  whether,  since  the  wife  had  a  sepa- 
rate estate  of  her  own,  and  made  provision  by  her  will  for  the 
payment  of  her  debts  and  funeral  expenses,  the  guardian  of 
the  lunatic  was  justified  in  paying  the  funeral  expenses  of  tlie 
wife  or  not. 

Under  the  common  law,  the  husband  was  undoubtedly  liable 
to  defray  all  necessary  expenses  incident  to  the  decent  burial 
of  his  wife.   Schouler,  Husb.  &  Wife,  §  412.   See  notes  Manby 


I08  TRANSACTIONS    BETWEEN    HUSBAND   AND    WIFE, 

V.  Scott,  3  Smitli,  Lead.  Cas.  1762;  Jenkins  v.  Tucker,  i  H.  Bl. 
91.  This  is  founded  upon  the  principle  of  law  which  holds  that 
the  husband  is  liable  for  all  things  necessary  for  the  comforta- 
ble support  and  maintenance  of  the  wife  consistent  with  his 
station  or  condition  in  life.    Manby  v.  Scott,  3  Smith,  Lead. 
Cas.  1714;  ]\Iontague  v.  Benedict,  Id.  1743;  Seaton  v.  Benedict, 
Id.  1749,  and  notes;  Cunningham  v.  Irwin,  7  Serg.  &  R.  (Pa.) 
247 ;  Cunningham  v.  Reardon,  98  Mass.  538 ;  Morrison  v.  Holt, 
42  N.  H.  478.  This  liability  continues  notwithstanding  the  in- 
sanity of  the  husband.   See  notes  to  the  above  case.   Manby  v. 
Scott,  supra,  1767.  The  language  of  the  author  is:  "The  obli- 
gation of  the  husband  to  maintain  his  wife  being  a  duty  im- 
posed by  the  law,  and  resulting  from  the  relation  between 
them,  does  not  cease  upon  the  husband's  becoming  insane. 
He  continues  liable  for  necessaries  supplied  to  his  wife,  in  the 
same  way  and  on  the  same  grounds  as  a  husband  who  has 
failed  to  supply  her  with  them."  The  same  author  says  tliat  it 
is  accordingly  so  held  where  the  wife's  separate  allowance  is 
sufficient.   Turner  v.  Rookes,  10  Adol.  &  E.  47. 

The  husband  being  liable  for  necessaries  furnished  the  wife, 
and  being  so  liable  after  he  becomes  insane,  and  being  liable  for 
the  expenses  of  her  decent  burial,  I  can  not  but  conclude  that 
such  liability  continues  after  he  becomes  insane,  even  though 
the  wife  has  a  separate  estate,  and  may  have  directed  by  her 
last  will  that  her  funeral  expenses  be  paid.  Such  undoubtedly 
was  the  common  law.  I  can  find  nothing  in  the  statute  that 
even  by  implication  changes  or  qualifies  the  common  law  in 
this  respect.  Therefore  I  conclude  that  the  guardian  of  the 
lunatic  has  a  right  to  be  reimbursed  out  of  the  moneys  now  in 
his  hands,  being  the  proceeds  of  the  sale  of  real  estate  of  the 

lunatic.  .    . 

This  does  not  dispose  of  the  question  whether  or  not  it  is 
or  will  become  the  duty  of  the  guardian  to  seek  to  enforce  the 
claim  for  these  funeral  expenses  against  the  estate  of  the  wife. 
There  is,  no  doubt,  strong  reason  for  insisting  that,  since  the 
wife  had  a  separate  estate,  and  by  her  will  charges  it  with  the 
payment  of  her  funeral  expenses,  that  in  equity,  if  not  m  law, 
she  intended  to  exonerate  her  husband's  estate  from  all  lia- 
bility. But  this  question  is  not  now  considered,  for  the  reason 
that  all  of  the  facts  and  circumstances  connected  with  or  con- 
cerning the  two  estates  are  not  now  before  the  court.  I  think 
it  is  not  amiss  to  say  that  it  deserves  tlie  consideration  of  the 
guardian  before  the  final  settlement  of  either  estate;  and,  to 
guard  against  mistake,  he  ought  to  file  his  claim  for  these  ex- 
penses with  the  executor  of  the  wife's  will. 


ryan  v.  dockery.  io9 

3.    Contracts  Affecting  Reciprocal  Duties, 

RYAN  V.  DOCKERY. 

134  Wis.  431,  114  N.  W.  820,  15  L.  R.  A.  (N.  S.)  491,  126  Am. 

St.  1025.    (1908.) 

Proceedings  by  Edwin  Ryan  to  establish  a  claim  against  the 
estate  of  his  wife,  Eliza  Ryan,  deceased,  against  Patrick  Dock- 
ery,  her  administrator.  Before  the  marriage  of  plaintiff  with 
the  decedent,  who  at  the  time  was  a  widow  with  a  small  prop- 
erty, blind,  and  living  alone,  it  was  agreed  between  them  that 
the  claimant  was  to  take  care  of,  support,  nurse,  and  see  to 
the  comfort  of  the  deceased  during  her  life,  and  she  was  to 
pay  him  therefor  by  giving  him  what  property  she  might  leave 
at  her  death  for  his  use  during  his  life.  Judgment  against 
claim  under  this  contract.  Affirmed. 

WINSLOW,  C.  J.  (after  stating  the  facts)  :  We  think  tliat 
the  court  was  entirely  right  in  changing  the  answer  to  the  sec- 
ond question  of  the  verdict;  but,  as  a  verdict  for  the  defendant 
should  have  been  directed  upon  the  undisputed  evidence,  neither 
this  question  nor  the  other  detail  errors  claimed  by  the  plaintiff 
are  important. 

One  consideration  alone  disposes  of  the  plaintiff's  claim  ad- 
versely to  him.  The  law  requires  a  husband  to  support,  care 
for,  and  provide  comforts  for  his  wife  in  sickness,  as  well  as 
in  health.  This  requirement  is  grounded  upon  principles  of 
public  policy.  The  husband  can  not  shirk  it,  even  by  contract 
with  his  wife,  because  the  public  welfare  requires  that  society 
be  thus  protected  so  far  as  possible  from  the  burden  of  support- 
ing those  of  its  members  who  are  not  ordinarily  expected  to  be 
Avage  earners,  but  may  still  be  performing  some  of  the  most 
important  duties  pertaining  to  the  social  order.  Husband  and 
wife  may  contract  with  each  other  before  marriage  as  to  their 
mutual  property  rights,  but  they  can  not  vary  the  personal  du- 
ties and  obligations  to  each  other  which  result  from  the  mar- 
riage contract  itself.  Schouler,  Domestic  Relations  (5th  Ed.) 
§  171 ;  21  Cvc.  1242.  It  results  from  this  that,  when  the  plain- 
tiff promised  to  care  for,  nurse,  and  support  the  deceased  after 
marriage,  he  promised  only  to  do  that  which  the  law  required 
him  to  do  in  any  event,  and  neither  the  doing  of  what  one  is 
in  law  bound  to  do  nor  the  promising  so  to  do  is  any  consid- 
eration for  another's  promise.  1  Page  on  Contracts,  §  311; 
Post  V.  Campbell,  no  Wis.  378,  85  X.  W.  1035.    The  alleged 


no  TRANSACTIONS    BETWEEN    HUSBAND   AND    WIFE. 

promise  of  the  deceased  was  therefore  nudum  pactum.  The 
plaintiff  simply  performed  duties  required  of  him  by  law 
as  a  husband  which  he  could  not  avoid  or  contract  away,  and 
there  can  be  no  recovery  either  upon  express  contract,  nor  will 
tlie  law  imply  a  contract. 
Judgment  affirmed. 


CORCORAN  V.  CORCORAN. 

119  Ind.  138,  21  N.  E.  468,  4  L.  R.  A.  782,  12  Am.  St.  390. 

(1889.) 

]\IITCHELL,  T-  •  This  was  an  action  by  Martin  Corcoran 
a^S^ainst  his  wife,  J\Iary  Corcoran,  to  recover  damages  for  the 
alleged  breach  of  an  executory  contract.  The  following  are 
the  material  facts  as  they  appear  in  the  complaint :  In  January, 
1871,  the  plaintiff  was  the  owner  of  a  house  and  lot  in  the  city 
of  Aurora,  Ind.,  which  was  of  the  alleged  value  of  $2,500,  and 
of  the  rental  value  of  $200  per  annum.  He  avers  that  his  wife 
proposed  to  him  that  if  he  would  convey  the  above-mentioned 
property  to  her  she  would  support  and  maintain  him  during 
his  natural  life,  and  that,  in  consideration  of  the  promise  and 
agreement  above  mentioned,  he  executed  a  warranty  deed,  con- 
veying the  property  to  her  In  fee  simple.  After  receiving  the 
conveyance,  the  defendant  treated  the  plaintiff  with  great  cru- 
elty, compelled  him  to  sleep  on  the  floor  and  otherwise  mis- 
treated him,  so  that  he  was  constrained  to  seek  shelter  else- 
where. He  avers  in  his  complaint  that  since  some  time  in  the 
3^ear  1879  the  defendant  has  refused  "to  maintain,  support,  or 
keep  plaintiff,  or  to  furnish  any  part  or  portion  of  his  support, 
and  still  refuses  so  to  do,  so  that  plaintiff"  has  been  compelled  to 
and  does  maintain  and  support  himself,  though  in  poor  health." 
He  charges  that  his  maintenance  and  support  are  reasonably 
worth  four  dollars  a  week ;  that  he  has  sustained  damages  In 
the  sum  of  $1,300,  on  account  of  the  default  of  his  wife  in  the 
respects  mentioned  above,  which  sum  he  prays  may  be  decreed 
to  be  a  lien  upon  the  land.  The  court  rendered  a  personal  judg- 
ment against  the  defendant,  and  entered  a  decree  according  to 
the  above  prayer. 

The  complaint  does  not  state  facts  sufficient  to  constitute  a 
cause  of  action.  A  conveyance  of  property  from  a  husband  to 
his  wife  Is  presumably  a  voluntary  settlement  or  provision  for 
her  benefit,  and,  if  it  is  reasonable,  It  will  be  upheld  against  the 
husband  and  his  heirs,  unless  obtained  by  fraud  or  undue  Influ- 
ence.  I  Bish.  Mar.  Wom.  §  754;  Har.  Cont.  Mar.  Wom.  §  44I. 


CORCORAN  V.  CORCORAN.  Ill 

While  the  conveyance  above  mentioned  was  therefore  presum- 
ably valid  and  binding,  the  executory  contract  of  the  wife  to 
support  her  husband  was  void.  Barnett  v.  Harsbarger,  105 
Ind.  410,  5  N.  E.  718.  The  law  makes  it  the  duty  of  the  hus- 
band not  only  to  support  himself,  but  his  wife  and  children  as 
well,  and  we  know  of  no  rule  of  law,  or  of  public  policy,  which 
gives  any  countenance  to  an  attempt  by  a  husband  to  abdicate 
the  duty  which  the  law  casts  upon  him,  and  imposes  it  as  an 
obligation  upon  his  wife,  through  the  medium  of  an  ordinary 
oral  contract.  Harrell  v.  Harrell,  117  Ind.  94,  19  N.  E.  621 
(present  term)  ;  Artman  v.  Ferguson,  73  Mich.  146,  40  N.  W. 
907,  2  L.  R.  A.  343,  16  Am.  St.  572.  Under  the  enlightened 
policy  of  modern  legislation,  married  women  have  been  relieved 
of  many  common-law  disabilities,  but  we  have  not  yet  pro- 
gressed so  far  as  to  enable  a  married  woman  to  bind  herself 
by  contract  with  her  husband  to  assume  his  obligation  to  fur- 
nish support  for  both.  Contracts  between  husband  and  wife 
are  void  in  law,  and  are  only  upheld,  especially  against  the 
wife,  when  they  are  supported  by  the  clearest  and  most  satis- 
factory equity.  It  does  not  appear  that  the  plaintiff  was  not 
abundantly  able  to  support  himself,  or  that  the  property  con- 
veyed to  his  wife  was  anything  more  than  a  reasonable  pro- 
vision for  her.  It  affirmatively  appears  in  the  complaint  that, 
after  the  plaintiff's  wife  refused  to  abide  by  the  contract,  the 
plaintiff  supported  himself.  The  gravamen  of  his  complaint  is 
that  he  was  obliged  to  earn  his  own  support,  notwithstanding 
the  contract  of  his  wife,  by  which  he  alleges  he  became  exempt 
from  that  onerous  burden  for  the  remainder  of  his  natural  life. 
He  claims  that  he  ought  now  to  be  reimbursed  at  the  rate  of 
four  dollars  per  week  by  way  of  damages,  because  his  wife  ^ 
refused  to  do  for  him  that  which  he  was  able  to  do  for  him- 
self. The  wrong  complained  of  grows  out  of  a  relation  which 
the  plaintiff  attempted  to  create  with  his  wife  by  contract.  The 
real  injury  complained  of  is  that  she  refused  to  perform  an 
agreement  into  which  he  had  entered  with  her.  The  law  will 
not  permit  a  husband  to  enforce  the  contract  indirectly,  by 
counting  on  the  wife's  refusal  to  perform  it  as  a  tort.  Cooley, 
Torts,  106;  Rice  v.  Boyer,  108  Ind.  474,  9  N.  E.  p.  420.  True, 
it  appears  tlie  plaintiff  conveyed  the  house  and  lot  to  his  wife. 
That  afforded  them  a  place  to  live,  but  one  or  the  other  must 
necessarily  supply  the  means  of  support.  It  does  not  appear 
that  either  had  any  other  means  of  furnishing  support,  except 
their  alnlity  to  work.  The  plaintiff'  assumes  that,  because  he 
made  the  conveyance  to  his  wife,  all  concern  about  support  in 
the  future  was  at  an  end  on  his  part,  since  his  wife  had  un- 


112  TRANSACTIONS    BETWEEN    HUSBAND   AND    WIFE. 

dertaken  to  furnish  it  by  contract.  It  does  not  appear  that  the 
wife  had  any  means  of  obtaining  support  for  herself,  except 
by  her  own  labor,  and,  even  if  it  did,  we  are  aware  of  no  prin- 
ciple or  precedent  which  would  sustain  a  Judgment  for  dam- 
ages in  favor  of  a  husband  against  his  wife  for  the  breach  of  an 
executory  contract,  and  especially  a  contract  of  the  anomalous 
character  of  the  one  in  question.  The  case  must  be  regarded 
precisely  as  if  the  husband  had  conveyed  the  property  to  his 
wife  without  any  contract  whatever,  except  so  far  as  the  con- 
tract may  have  operated  as  an  inducement  to  the  conveyance. 
The  wife  had  no  power  to  make  such  a  contract,  and  the  plain- 
tiff acquired  no  equitable  right  through  the  void  contract  which 
a  court  of  equity  can  recognize.  The  judgment  is  reversed,  with 
costs. 


LEE  V.  SAVANNAH  GUANO  CO. 
99  Ga.  572,  2-]  S.  E.  159,  59  Am.  St.  243.    (1896.) 

Claim  by  a  wife  in  an  action  against  her  husband  and  others, 
in  which  plaintiff  had  judgment,  that  certain  property  taken  in 
execution  belonged  to  her  and  not  to  her  husband.  Judgment 
for  plaintiff  in  the  action  against  the  claimant.  Affirmed. 

LUMPKIN,  J.:  An  execution  in  favor  of  the  Savannah 
Guano  Company,  against  a  partnership  composed  of  Lee  and 
two  others,  was  levied  upon  certain  land,  as  the  property  of 
Lee,  which  was  claimed  by  his  wife.  The  property  was  found 
subject,  and  the  claimant  complains  here  of  the  overruling  of 
her  motion  for  a  new  trial.  Although  it  contains  numerous 
grounds,  the  case,  upon  its  merits,  involves  a  single  question, 
viz.,  that  indicated  in  the  first  headnote. 

The  record  discloses  that,  when  Mr.  and  Mrs.  Lee  married, 
they  owned  no  property,  and  were  necessarily  dependent  upon 
their  own  labor  for  a  support.  Realizing  their  situation,  and 
being  very  properly  desirous  of  bettering  their  condition  in 
life  by  the  accumulation  of  property,  they  considered  and  dis- 
cussed between  themselves  the  question  of  dispensing  with  hired 
servants,  and  doing  their  own  work,  each  to  bear  a  fair  share 
of  the  burden  common  to  both.  It  was  obviously  contemplated 
that  the  husband  should  labor  to  procure  for  them  the  neces- 
saries of  life,  and  that  she  should  keep  the  household  and  its 
affairs  in  order.  This  is  exactly  what  people  in  their  circum- 
stances ought  to  do,  and  their  conduct  was  altogether  praise- 


LEE  V.  SAVANXAII  GUAXO  CO.  II3 

wortliy.  It  further  appears  that  they  entered  into  an  agreement 
by  the  terms  of  which  I\Ir.  Lee  was  to  pay  Mrs.  Lee  $ioo  per 
annum  in  consideration  of  her  consent  to  dispense  with  serv- 
ants, and  her  undertaking  to  perform  with  her  own  hands  the 
ordinary  household  duties  devolving  upon  a  wife  in  her 
position. 

There  was  nothing  wrong  about  this  agreement,  and  if  Mr. 
Lee  had  been  able  to  pay  her  the  stipulated  sum  per  annum,  and 
at  the  same  time  pay  his  debts,  there  w^ould  have  been  no  diffi- 
culty about  the  matter.  We  can  not,  however,  bring  ourselves 
to  the  conclusion  that  an  agreement  of  this  kind  can  be  made 
effectual  as  against  creditors  of  the  husband.  Mr.  Lee  failed 
to  make  the  annual  payments  to  his  wife  as  agreed;  and,  when 
his  alleged  indebtedness  to  her  had  so  accumulated  as  to  amount 
to  a  considerable  sum,  he  conveyed  to  her  the  land  now  in  dis- 
pute in  settlement  and  full  satisfaction  of  her  entire  claim.  This 
conveyance  was  made  before  the  plaintiff  in  execution  had  ob- 
tained' judgment  against  Lee  upon  a  debt  contracted  by  the  lat- 
ter prior  to  the  settlement  with  his  wife  above  mentioned. 

Under  the  facts  recited,  we  do  not  think  Mrs.  Lee  can  main- 
tain her  claim  to  the  land  in  controversy.  Notwithstanding  the 
passage  of  the  married  woman's  law  of  1866,  the  wife  still  owes 
to  the  husband  the  performance  of  those  common-law  duties, 
and  the  rendering  of  those  services  which  are  appropriate  to 
their  surroundings  and  circumstances.  If  he  labors  in  the  field, 
in  the  w'orkshop,  or  elsewhere,  for  her  support,  as  is  his  legal 
duty,  she  can  not  charge  him  for  cooking  his  meals,  making  or 
mending  his  garments,  sweeping  the  floors  of  his  house,  milking 
the  cow,  or  for  other  services  of  a  like  kind.  Their  duties  are 
correlative,  the  performance  of  hers  being  no  less  obligatory 
than  the  performance  of  his.  The  husband  is  not  legally  bound 
to  support  his  wife  in  luxurious  idleness.  If  she  refuses  to  per- 
form her  obligations,  she  forfeits  all  right  to  demand  of  him 
a  support. 

The  courts  uniformly  protect  the  husband  in  the  assertion 
of  his  lawful  right  to  receive  the  benefit  of  his  wife's  services. 
Indeed,  it  is  only  upon  the  theory  that  the  services  of  the  wife 
belong  absolutely  to  her  husband  that  the  law  allows  him  to 
recover  damages  for  torts  committed  upon  her,  by  reason  of 
which  he  is  deprived  of  those  services.  If  a  husband  without 
means  is  willing  to  take  upon  himself  all  the  burdens,  or  if, 
because  of  the  possession  of  adequate  means,  he  is  able  to  re- 
lieve his  wife  from  all  forms  of  drudgery,  it  is,  in  the  first 
instance,  sometimes  commendable,  and,  in  the  latter,  always 
8 — Cases  Dcvm.  Rel. 


114  TRANSACTIONS    BETWEEN    HUSBAND   AND    WIFE. 

proper,  for  him  to  do  so ;  but  the  wife  can  not  demand  such  an 
exemption  as  a  matter  of  strict  legal  right.  It  must  be  borne  in 
mind  that  we  are  not  now  dealing  with  the  question  of  the  hus- 
band's appropriation  of  money  made  by  his  wife  as  earnings 
from  work  or  labor  performed  in  spheres  entirely  outside  of  her 
household  duties  and  obligations.  Such  earnings  are  oftentimes 
exclusively  her  own ;  certainly  so  when  her  husband  expressly 
consents  to  her  engaging  in  the  occupation  or  business  from 
which  they  are  realized.  The  present  case  is  altogether  of  a 
different  order.  In' reaping  the  benefits  of  his  wife's  services  in 
conducting  in  person  her  household  affairs,  Mr.  Lee  gained 
nothing  to  which  he  was  not,  independently  of  the  agreement 
between  them,  entitled,  as  a  matter  of  absolute  right.  This  is 
none  the  less  true  though  the  services  she  rendered  may  have 
been  prompted  by  affection  and  a  wifely  devotion,  which  made 
her  willing  to  save  him  the  expense  of  hiring  servants,  which 
he  would  have  been  willing  to  incur  had  she  so  desired. 

It  follows  tliat  his  alleged  agreement  with  her  did  not  amount 
to  a  contract  which,  in  any  legal  sense,  was  based  upon  a  valu- 
able consideration.  In  cold,  hard  law, — which  we  are  obliged 
to  enforce, — it  was  only  a  nudum  pactum.  The  deed  made  in 
pursuance  of  this  agreement  rested  upon  no  better  foundation 
than  the  alleged  contract  itself,  and  was  tlierefore  purely  vol- 
untary. We  are  thoroughly  satisfied  that  the  rights  of  a  judg- 
ment creditor  can  not  be  defeated  by  such  conveyance.  Any 
other  conclusion  would  tend  to  a  disregard  and  neglect  of  those 
mutual  obligations  existing  between  married  persons  of  limited 
means,  the  observance  of  which  contributes  so  largely  towards 
making  the  honest  laboring  people  of  this  country  the  bulwarks 
of  its  prosperity.  Judgment  affirmed. 


DEMPSTER  MILL  MFG.  CO.  v.  BUNDY. 

64  Kans.  444,  67  Pac.  816,  56  L.  R.  A.  739.    (1902.) 

Action  by  Laura  J.  Bundy  against  the  Dempster  Mill  Manu- 
facturing Company  to  recover  a  crop  taken  by  defendant  under 
an  execution  against  plaintiff's  husband.  Judgment  for  plain- 
tiff.  Reversed. 

POLLOCK,  J. :  Replevin,  brought  to  recover  a  crop  con- 
sisting of  wheat,  oats,  and  rye,  in  the  stack,  taken  by  the  sheriff 
in  execution  of  a  judgment  in  favor  of  plaintiff  in  error  against 
E.  N.  Bundy,  husband  of  defendant  in  error,  plaintiff  below. 
Plaintiff  had  verdict  and  judgment.  Defendant  brings  error. 


DEMPSTER  MILL  MFG.   CO.  V.  BUXDY.  II5 

There  is  no  question  of  exemption  involved  in  this  action. 
The  ground  of  recovery  is  ownership.  The  principal  contention 
of  error  reHed  upon  is  the  insufficiency  of  tlie  evidence  to  sup- 
port the  judgment  rendered.  It  appears  from  the  record  a  por- 
tion of  the  crop  in  controversy  was  grown  upon  rented  land; 
the  remainder,  upon  land  of  the  husband.  The  land  was  rented, 
and  the  crop  sown,  harvested,  and  stacked,  by  the  husband.  The 
claim  made  is  that  the  personal  property  on  the  farm,  used  by 
the  husband  in  producing  the  crop,  is  the  separate  property  of 
the  wife;  that  the  husband  was  employed  by  the  wife  to  work 
for  her,  and  in  payment  she  performed  services  for  him;  that, 
in  all  the  husband  did,  he  acted  as  the  agent  of  the  wife.  [The 
court  here  sets  out  the  e\'idcnce  showing  a  contract  by  which 
the  wife,  who  owned  nothing  personally,  hired  her  husband 
to  raise  a  crop  for  her,  she,  on  her  part,  working  for  him  in 
carrying  mail  for  him  and  doing  the  housework  and  caring  for 
the  children.] 

Does  tliis  testimony  support  the  judgment  rendered?  Is  an 
agreement  between  husband  and  wife  that  the  husband  shall 
work  for  the  wife,  and  in  payment  for  such  service  the  wife 
shall  work  for  the  husband,  each  engaged  in  the  usual  and  ordi- 
nary affairs  of  life,  and  that  the  product  of  such  joint  effort 
shall  be  the  sole  property  of  the  wife,  founded  upon  a  suffi- 
cient consideration,  and  valid  in  law?  If  so,  the  judgment  ren- 
dered in  this  case  must  be  upheld.  If  not,  reversal  must  follow. 
Notwithstanding  the  liberal  statutory  enactments  in  this  state 
in  modification  of  the  harsh  rules  of  the  common  law,  author- 
izing and  upholding  the  right  of  the  wife  to  have,  dispose  of, 
and  enjoy  to  the  fullest  extent  her  separate  property,  without 
tlie  consent  or  interference  of  her  husband,  and  notwithstand- 
ing the  large  and  salutary  measures  of  freedom  granted  a  wife 
in  the  transaction  of  business  connected  with  her  separate  es- 
tate, and  in  the  making  of  contracts  with  all, — even  her  hus- 
band,—  there  are  certain  contracts  between  husband  and  wife, 
which,  on  grounds  of  public  policy,  are,  and  of  right  must  con- 
tinue, in  this  and  all  other  jurisdictions,  to  be  interdicted  by 
law.  Within  this  class  of  contracts  falls  the  one  upon  which 
plaintiff  bases  her  claim  of  ownership  of  the  property  in  con- 
troversy in  this  action.  It  is  void  for  want  of  consideration, 
and  is  contrary  to  public  policy. 

The  authorities  upon  this  proposition  are  a  unit  and  conclu- 
sive. The  author  of  15  Am.  &  Eng.  Enc.  Law  (2d  Ed.)  S54, 
says :  "And  notwithstanding  the  statutes  of  the  various  states 
enabling  husband  and  wife  to  contract  with  each  other,  some 
specific  contracts  have  been  declared  to  be  invalid,  either  as 


Il6  TRANSACTIONS    BETWEEN    HUSBAND   AND    WIFE. 

being  without  consideration  or  as  being  against  public  policy." 
In  the  case  of  Trust  Co.  v.  Chapin,  io6  ]\Iich.  384,  64  N.  W. 
334,  58  Am.  St.  490,  it  is  held:  "An  agreement  by  a  husband 
to  pay  his  wife  a  designated  sum  for  her  services  as  house- 
keeper is  contrary  to  public  policy  and  void."  In  Miller  v.  Alil- 
ler,  78  Iowa  177,  35  N.  W.  464,  42  N.  W.  641,  16  Am.  St.  431, 
it  is  held:  "A  contract  between  husband  and  wife  by  which 
the  wife  agrees  to  faithfully  observe  and  perform  the  duties 
imposed  upon  her  by  her  marital  relations,  and  by  which  the 
husband  agrees  to  provide  the  necessary  expenses  of  the  family, 
and  to  pay  the  wife,  for  her  individual  use,  a  certain  sum  annu- 
ally, in  monthly  payments,  so  long  as  she  faithfully  keeps  the 
terms  and  conditions  of  the  contract,  is  against  public  policy 
and  void." 

In  Corcoran  v.  Corcoran,  119  Ind.  138,  21  N.  E.  468,  4  L. 
R.  A.  782,  12  Am.  St.  390,  it  is  held:  "A  contract  by  which  a 
wife,  in  consideration  of  a  conveyance  to  her  of  real  estate  by 
her  husband,  agrees  to  support  him  during  his  natural  life,  is 
void,  and  the  husband  can  not  maintain  an  action  to  recover 
damages  for  the  breach  thereof."  In  re  Callister,  153  N.  Y. 
294,  47  N.  E.  269,  60  Am.  St.  620,  It  Is  held :  "Though  a  woman 
is  serving  a  man  in  the  capacity  of  clerk,  upon  an  agreement 
to  pay  her  an  annual  compensation  of  five  hundred  dollars, 
such  employment  to  continue  as  long  as  he  practices  law,  and 
such  payment  not  to  be  made  until  he  retires  from  business, 
he,  upon  their  subsequent  marriage,  becomes  entitled  to  her 
services  without  payment.  She  need  not  continue  serving  him 
as  a  clerk,  but.  If  she  does,  she  can  not  enforce  a  promise  to 
pay  therefor,  however  solemnly  made.  The  legislation  of  the 
state  of  New  York  upon  the  subject  of  the  rights  of  married 
women  has  only  resulted  In  abrogating  their  common-law  status 
to  the  extent  set  forth  in  the  various  statutes.  They  have  not 
by  express  provision  nor  by  implication,  deprived  him  of  his 
common-law  right  to  avail  himself  of  a  profit  or  benefit  from 
her  services."  In  a  note  to  Trust  Co.  v.  Chapin,  supra,  found 
In  58  Am.  St.  490  (s.  c.  64  N.  W.  334),  It  Is  said:  "If  the 
services  performed  by  the  wife,  for  which  her  husband  agreed 
to  pay  her,  were  in  the  nature  of  ordinary  marital  or  house- 
hold duties,  of  course,  his  agreement  to  pay  for  them  was  not 
binding  upon  him,  because  without  consideration,  and  his  com- 
pliance with  it  must  be  deemed  a  mere  gift  to  his  wife,  not 
sustainable  as  against  his  creditors,  except  as  under  the  same 
conditions  as  would  permit  the  sustaining  of  any  other  volun- 
tary transfer  by  him ;  and  therefore  his  creditors  have  the 
right  to  any  property  received  by  her  from  him  in  carrying  out 


HARMON  V.  OLD  COLONY  RAILROAD  CO.  l\J 

his  agreement  tliat  they  have  to  any  other  property  given  by 
him  to  her."  Switzer  v.  Kee,  146  IH.  577,  35  N.  E.  160;  Gable 
V.  Cigar  Co.,  140  Ind.  563,  38  N.  E.  474;  Trust  Co.  v.  Chapin, 
106  Mich.  384,  64  N.  W.  334,  58  Am.  St.  490 ;  Apple  v.  Ganong, 
47  Miss.  189;  Reynolds  v.  Robinson,  64  N.  Y.  589;  Bucher  v. 
Ream,  68  Pa.  421 ;  Cami)ljcll  v.  Bowles'  Ex'rs,  30  Grat.  (Va.) 
652;  Elliott  V.  Bently,  17  Wis.  591. 

It  follows,  the  claim  of  plaintiff  to  the  property  in  contro- 
versy, being  founded  upon  a  contract  prohibited  by  public  pol- 
icy, and  lacking  the  essential  element  of  consideration,  is  void 
as  to  the  creditors  of  her  husband;  and,  unless  other  valuable 
considerations  may  be  shown  in  support  of  such  contract  and 
her  right  to  the  property,  no  recovery  can  be  had. 

Judgment  reversed,  and  case  remanded  for  new  trial  in  ac- 
cordance with  this  opinion.   All  the  justices  concurring. 


4.    Wife's  Earnings  Under  Statutes. 

HAR^ION  V.  OLD  COLONY  RAILROAD  CO. 

165  Mass.  100,  42  N.  E.  505,  30  L.  R.  A.  658,  52  Am.  St.  499. 

(1896.) 

Action  by  Lydia  W.  Harmon  against  The  Old  Colony  Rail- 
road Company  for  personal  injuries.  Plaintiff  was  a  married 
woman  conducting  a  restaurant  on  her  own  account.  As  an 
element  of  damages  she  alleged  the  loss  of  her  own  labor  and 
services.  Evidence  as  to  their  value  was  excluded,  and  the 
jury  were  instructed  to  consider  only  what  would  compensate 
plaintiff  for  tlie  mental  and  physical  pain  she  endured  and  her 
loss  of  capacity  to  enjoy  life.  Verdict  for  plaintiff  for  $2,200. 
Plaintiff  excepted.   Exceptions  sustained. 

ALLEN,  J. :  The  general  question  arising  in  this  case  is 
whether,  in  an  action  brought  by  a  married  woman  to  recover 
damages  for  a  personal  injury,  the  impairment  of  her  capacity 
to  perform  labor  can  be  considered  as  an  element  of  tlie  dam- 
ages. By  St.  1846,  ch.  209,  §  I,  it  was  enacted  that  "in  all 
cases  where  married  women  shall  hereafter  by  their  own  labor 
earn  wages,  payment  may  be  made  to  them  for  the  same."  This 
was  followed  by  St.  1855,  ch.  304,  §  7:  "Any  married  woman 
may  carry  on  any  trade  or  business  and  perform  any  labor  or 
services  on  her  sole  and  separate  account ;  and  the  earnings  of 
any  married  woman  from  her  trade,  business,  labor  or  services 


Il8  TRANSACTIONS    BETWEEN    HUSBAND   AND    WIFE. 

shall  be  her  sole  and  separate  property  and  may  be  used  and 
invested  by  her  in  her  own  name ;  and  she  may  sue  and  be  sued 
as  if  sole  in  regard  to  her  trade,  business,  labor,  services  and 
earnings ;  and  her  property  acquired  by  her  trade,  business  and 
service  and  the  proceeds  thereof,  may  be  taken  on  any  execu- 
tion against  her."  By  St.  1857,  ch.  249,  §  6,  it  was  provided 
that  a  husband  should  not  be  bound  by  his  wife's  contracts  in 
respect  to  her  separate  property  or  to  her  trade.  The  rights  of 
married  women  in  respect  to  their  labor  are  thus  defined  in 
Gen.  St.  ch.  108:  Section  i.  "The  property,  both  real  and  per- 
sonal which  any  married  woman  now  owns  as  her  sole  and  sep- 
arate property,  that  which  comes  to  her  by  descent,  devise, 
bequest,  gift  or  grant,  that  which  she  acquires  by  her  trade, 
business,  labor  or  services  carried  on  or  performed  on  her  sole 
and  separate  account  *  *  *  shall  tiotwithstanding  her 
marriage,  be  and  remain  her  sole  and  separate  property  and 
may  be  used,  collected  and  invested  by  her  in  her  own  name, 
and  shall  not  be  subject  to  the  interference  or  control  of  her 
husband,  or  liable  for  his  debts."  Section  3 :  "A  married 
woman  may  bargain,  sell  and  convey  her  separate  real  and 
personal  property,  enter  into  any  contracts  in  reference  to  the 
same,  carry  on  any  trade  or  business  and  perform  any  labor  or 
services  on  her  sole  and  separate  account  and  sue  and  be  sued 
in  all  matters  having  relation  to  her  separate  property,  business, 
trade,  services,  labor  and  earnings  in  the  same  manner  as  if 
she  were  sole."  Section  5 :  "The  contracts  made  by  a  married 
woman  in  respect  to  her  separate  property,  trade,  business, 
labor  or  services  shall  not  be  binding  on  her  husband,  nor  ren- 
der him  or  his  property  liable  therefor ;  but  she  and  her  sepa- 
rate property  shall  be  liable  for  such  contracts  in  the  same  man- 
ner as  if  she  were  sole."  Section  6:  "Payment  may  be  made  to 
a  married  woman  for  wages  earned  by  her  labor,"  etc.  By 
Stat.  1862,  ch.  198,  amended  by  Stat.  1S81,  ch.  64,  §  i,  a  mar- 
ried woman  doing  business  on  her  separate  account  must  record 
a  certificate  in  the  town  or  city  clerk's  office  setting  forth  vari- 
ous particulars,  or  her  husband  may  file  such  certificate.  In 
case  of  failure  to  do  so,  her  property  will  not  be  protected 
against  his  creditors,  and  he  will  be  liable  on  her  contracts.  By 
Stat.  1874,  ch.  184,  §  I,  "a  married  woman  may  *  *  *  make 
contracts  oral  and  written,  sealed  and  unsealed  in  the  same 
manner  as  if  she  were  sole,  and  all  work  and  labor  performed 
by  her  for  others  than  her  husband  and  children  shall,  unless 
there  is  an  express  agreement  on  her  part  to  the  contrary,  be 
presumed  to  be  on  her  separate  account."  And  by  section  3 
"a  married  woman  may  sue  and  be  sued  in  the  same  manner 


HARMON  V.  OLD  COLONY  RAILROAD  CO.  I  IQ 

and  to  the  same  extent  as  if  she  were  sole,  but  nothing  herein 
contained  shall  authorize  suits  between  husband  and  wife." 
This  enumeration  of  statutes  shows  the  growth  of  the  legisla- 
tion on  this  particular  subject,  and  tlie  foregoing  provir^ions  are 
now  embodied  in  a  somewhat  compressed  form  in  Pub.  Stat, 
ch.  147. 

By  virtue  of  this  legislation,  a  married  woman  becomes,  in 
the  view  of  the  law,  a  distinct  and  independent  person  from  her 
husband,  not  only  in  respect  to  her  right  to  own  property,  but 
also  in  respect  to  her  right  to  use  her  time  for  the  purpose  of 
earning  money  on  her  sole  and  separate  account.  She  may 
perform  labor,  and  is  entitled  to  her  wages  or  earnings.  If  she 
complies  with  the  statutory  requirements  as  to  recording  a  cer- 
tificate, she  may  carry  on  any  trade  or  business  on  her  sole  and 
separate  account,  and  take  the  profits,  if  profits  there  are,  as 
her  separate  property.  Her  right  to  enter  into  contracts,  to 
earn  money,  to  engage  in  performing  labor  or  service,  to  enter 
into  trade  on  her  own  account,  is  inconsistent  with  the  view 
that  her  capacity  to  labor  belongs  exclusively  to  her  husband. 
He  can  appropriate  neither  her  earnings  nor  her  time.  Her 
right  to  employ  her  time  for  the  earning  of  money  on  her  own 
account  is  as  complete  as  his,  subject  to  the  requirement  of 
recording  a  certificate  in  case  she  enters  into  trade.  This  may 
interfere  with  his  right  to  and  enjoyment  of  her  society,  com- 
panionship, and  services.  But  this  is  a  consequence  which  the 
legislature  must  be  deemed  to  have  foreseen  and  intended.  His 
right,  in  these  respects,  is  now  made  subordinate  to  her  right 
to  employ  her  time  in  the  care  and  management  of  her  property, 
and  in  tlie  earning  of  money  by  performing  labor  or  by  carry- 
ing on  a  trade  or  business.  So  far  as  the  statutes  have  given 
to  her  a  right  to  act  independently  of  him,  so  far  his  rights  and 
control  in  respect  to  her  are  necessarily  abridged.  He  can  no 
longer  compel  her  to  work  for  him  during  such  time  as  she  may 
choose  to  perform  labor  on  her  sole  and  separate  account.  By 
the  common  law  the  husband  was  bound  to  support  his  wife, 
and  tlierefore  was  entitled  to  her  services.  By  the  statutes, 
which  modify  the  common  law,  his  right  to  her  services  is 
abridged,  though  his  obligation  to  support  her  remains. 

It  is  urged  in  argument  that  she  may  contract  to  devote  her 
whole  time  to  work  which  is  to  be  performed  away  from  his 
home,  and  which,  perhaps,  may  require  her  absence  for  ten 
years,  thus  amounting  to  a  desertion  which  would  be  in  viola- 
tion of  her  matrimonial  duty.  But  the  possibility  of  extreme 
cases  should  not  conclusively  determine  tlie  construction  of 
statutes,  nor  do  we  now  decide  whether  the  statutes  would  per- 


120  TRANSACTIONS    BETWEEN    HUSBAND   AND    WIFE. 

mit  such  action  on  her  part  against  his  consent.  To  a  certain 
hmited  extent — as,  for  example,  in  fixing  the  domicile,  and  in 
being  responsible,  under  ordinary  circumstances,  for  its  orderly 
management — the  husband  is  still  the  head  of  the  family.  But 
in  some  particulars  a  married  woman  is  now  independent  of 
her  husband's  control. 

In  the  case  now  before  us  the  impairment  of  the  plaintiff's 
capacity  to  labor  was  an  element  which  might  be  considered  by 
tlie  jurv  in  the  estimate  of  her  damages.  In  respect  to  this,  as 
with  other  elements  of  damages,  no  close  approximation  to 
mathematical  accuracy  can  in  all  cases  be  reached.  In  some 
instances  the  right  of  a  married  woman  to  perf onii  labor  for 
others  may  have  no  money  value.  How  much,  if  anytliing, 
should  be  allowed  on  this  ground,  must  be  left  to  the  jury  to 
determine,  under  the  circumstances  of  each  particular  case. 

The  radical  nature  of  tlie  change  effected  by  the  legislation 
of  this  state  in  tlie  legal  condition  of  married  women  is  illus- 
trated in  numerous  decisions,  of  whicli  Jordan  v.  Railroad  Co., 
138  J\lass.  425,  most  nearly  resembles  the  present  case.  But 
see,  also,  Parker  v.  Simonds,  i  Allen  (Mass.)  258;  Ames  v. 
Foster,  3  Allen  (Mass.)  541 ;  Plumer  v.  Lord,  5  Allen  (Mass.) 
460;  Chapman  v.  Foster,  6  Allen  (Mass.)  136;  Stewart  v. 
Jenkins,  Id.  300;  Chapman  v.  Briggs,  11  Allen  (Mass.)  546; 
Burke  v.  Cole,  97  Mass.  113;  Snow  v.  Sheldon,  126  Mass.  332; 
Read  v.  Stewart,  129  Mass.  407;  Bank  v.  Windram,  133  Mass. 
175;  Butler  V.  Ives,  139  Mass.  202,  29  N.  E.  654;  Binney  v. 
Bank,  150  Mass.  574,  23  N.  E.  380. 

Exceptions  sustained. 

5.  Wife's  Interest  in  Husband's  Personal  Property. 

HALL  V.  HALL. 

109  Va.  117,  63  S.  E.  420,  21  L.  R.  A.  (N.  S.)  533-   (i909-) 

Suit  by  the  widow  of  James  A.  Hall  to  set  aside  a  deed  exe- 
cuted by  him.    Decree  for  defendants.  Affirmed. 

WHITTLE,  J. :  Shortly  before  his  death,  J.  A.  Hall,  who 
had  been  twice  married  but  was  childless,  made  his  will  dis- 
posing of  his  real  estate,  his  household  and  kitchen  furniture, 
and  certain  other  personal  estate,  to  various  persons,  mainly  to 
his  brother  and  nephews ;  but  he  also  devised  to  his  wife,  Nellie 
Hall,  the  appellant,  the  farm  known  as  the  "Burton  land,"  and 
a  house  and  lot  in  the  village  of  Hallwood  which  devises  the 


HALL  V.   HALL.  121 

will  declared  were  not  to  be  in  lieu  of  her  dower  in  his  other 
lands.  He  likewise  bequeathed  to  her  certain  personal  property. 

At  the  same  time,  Hall  executed  a  deed  conveying  the  bulk 
pf  his  personal  estate,  comprising  bonds  and  stocks  aggregating 
^35,000,  to  trustees.  The  deed  sets  out  accurately  the  securi- 
ties conveyed  and  tlie  names  and  shares  of  the  respective 
donees,  and  clearly  defines  the  power  and  duties  of  the  trustees. 
Thus,  the  trustees  are  empowered  and  directed  to  collect  the 
interest  and  dividends  on  the  principal  fund  for  the  use  and 
benefit  of  the  grantor  during  his  life,  and,  if  any  portion  of 
such  interest  and  dividends  should  remain  at  the  time  of  his 
death,  it  was  to  fall  into  and  become  a  part  of  his  estate.  With 
regard  to  the  corpus  of  the  principal  fund,  the  trustees  were 
clothed  wath  wide  discretion  to  invest  and  reinvest  the  pro- 
ceeds for  the  benefit  of  the  cestui  que  trustent  until  the  grant- 
or's death,  the  period  fixed  for  the  final  distribution  of  that 
estate. 

All  of  the  beneficiaries,  with  a  few  exceptions,  were  relatives 
or  connections  of  the  grantor,  and  the  fund  was  to  be  divided 
among  tliem  according  to  their  designated  portions ;  the  appel- 
lant's share  being  $3,000. 

Upon  the  death  of  Hall,  his  widow  renounced  the  provision 
made  for  her  by  his  wall  and  elected  to  take  her  dower  and  dis- 
tributive share  in  the  estate.  She,  moreover,  brought  this  suit 
to  set  aside  the  deed  and  enforce  her  rights  as  widow  under  tlie 
statute. 

The  plaintiff  rests  her  case  upon  tlie  allegations  that  the  con- 
veyance is  inoperatitve  as  a  deed,  because  it  was  never  deliv- 
ered, and  that  it  is  also  ineffectual  for  the  further  reason  that, 
while  tlie  writing  is  in  form  a  deed  of  trust,  it  is  in  reality  a 
will  in  disguise — a  devise  resorted  to  by  the  grantor  to  enable 
him  to  retain  dominion  over  his  personal  estate  until  his  death, 
and  at  the  same  time  to  deprive  his  widow  of  her  distributive 
share  therein.  Yet,  inasmuch  as  the  paper  is  in  fact  a  will,  it  is 
void  because  not  executed  in  accordance  with  the  requirements 
of  the  statute. 

From  a  decree  sustaining  tlie  validity  of  the  deed,  tliis 
appeal  was  allowed. 

The  testimony  was  chiefly  directed  to  the  question  of  the 
delivery  of  the  deed.  Witliout  undertaking  a  review  of  the  evi- 
dence, it  is  sufficient  to  state  that  it  satisfactorily  shows  that  tlie 
deed  was  duly  executed,  acknowledged  for  registry,  and  deliv- 
ered by  the  grantor  to  one  of  tlie  trustees,  and  accepted  by  him 
without  condition.  The  legal  consequence  of  these  acts  \vas  to 
operate  a  complete  divestiture  of  the  grantor's  title  to  the  prop- 


122  TRANSACTIONS   BETWEEN   HUSBAND  AND   WIFE. 

ert}'  conveyed,  and  to  invest  it  in  the  grantees,  upon  the  trusts 
and  for  the  uses  declared  by  the  deed,  i  DevHn  on  Deeds 
(2d  Ed.)  §  300. 

With  respect  to  the  contention  that  the  deed  is  a  will  in  dis- 
guise, the  instrument  speaks  for  itself.  It  is  unmistakably 
what  it  purports  to  be,  a  deed  of  conveyance  of  personal  prop- 
erty, and  possesses  all  the  attributes  which  attach  to  that  species 
of  conveyance.  It  is  true  the  circumstances  surrounding  the 
transaction  leave  no  room  for  doubt  that  it  was  Hall's  purpose 
to  limit  the  rights  of  his  wife  in  his  estate  to  the  provision 
made  for  her  by  his  will  and  deed.  Nevertheless,  if  In  so  doing 
he  has  not  transcended  his  legal  rights,  she  can  not  be  heard 
to  complain ;  nor  can  the  courts  impugn  his  conduct,  no  matter 
what  may  have  been  the  actuating  motive. 

The  fact  that  the  precise  question  involved  in  this  case  has 
been  twice  decided  by  this  court  renders  unnecessary  a  discus- 
sion of  the  power  of  tlie  husband  to  disappoint  his  widow  by 
divesting  himself  of  title  to  his  personal  estate  in  his  lifetirne. 
Of  course,  this  doctrine  is  not  to  be  confounded  with  the  prin- 
ciples applicable  to  dispositions  of  property  made  in  contempla- 
tion of  marriage. 

.  In  the  case  of  Lightfoot's  Executors  v.  Colgin  and  Wife,  5 
Munf.  (Va.)  42,  it  was  held  that:  "A  wife  has  not  such  an 
interest  in  that  portion  of  the  personal  estate  of  her  husband 
to  which  she  may  be  entitled  in  the  event  of  his  dying  intestate, 
or  leaving  a  will  which  she  may  renounce,  as  that  an  absolute 
and  irrevocable,  though  merely  voluntary,  deed  thereof,  exe- 
cuted by  him  to  his  children  by  a  former  marriage,  can  be  con- 
sidered a  fraud  on  her  rights,  or  be  set  aside  at  her  instance. 
A  deed  of  trust,  if  not  revocable  by  the  grantor,  is  not  to  be 
considered  a  will  in  disguise,  on  the  grounds  that  nearly  all  his 
personal  state  is  thereby  conveyed,  and  that  he  reserves  to  him- 
self the  possession  and  control  of  the  property  during  his  life." 
It  is  interesting  to  note  that  this  case  was  argued  January  21, 
1813,  but  was  not  decided  until  February  14,  1816.  All  five  of 
the  judges  delivered  opinions,  and  the  question  at  issue  was 
exhaustively  considered.  The  conclusion  reached  by  the  ma- 
jority is  a  correct  exposition  of  the  common-law  doctrine  ap- 
plicable to  the  case,  while  most  of  the  English  precedents  relied 
on  by  the  minority  seem  to  have  been  controlled  by  the  custom 
of  particular  places,  and  consequently  form  no  part  of  the  com- 
mon law  of  this  state. 

The  question  was  again  before  the  court  in  the  year  1850,  in 
Gentry  et  al.  v.  Bailey,  6  Grat.  ( Va.)  594,  and  the  court,  follow- 
ing the  decision  in  Lightfoot's  Executors  v.  Colgin  and  Wife, 


FARROW  V.   FARROW.  1 23 

5  Munf.  (Va.)  42,  held  that  "a  conveyance  by  a  husband,  by 
which  he  parts  absolutely  with  an  interest  in  personal  property, 
though  it  is  not  to  take  effect  until  his  death,  and  though  he 
retains  the  power  to  sell  and  reinvest  or  account,  and  also  to 
reai)point  among  specified  objects,  is  valid  to  bar  the  wife  of 
her  distributable  share  therein." 

Mr.  Minor  states  the  rule  as  follows:  "But  whilst  the  hus- 
band can  not  defeat  the  wife's  claim  to  her  distributive  share 
by  will,  he  may  do  so  by  an  irrevocable  disposition  of  the  prop- 
erty in  his  lifetime,  although  he  secure  a  life  estate  to  himself, 
and  although  his  declared  purpose  is  to  disappoint  the  wife's 
claim  as  one  of  his  distributees."  3  I\Iin.  Inst.  pt.  i,  530. 

Our  attention  has  been  called  to  decisions  which  indicate  that 
a  different  rule  obtains  in  some  of  the  otlier  states  of  the  Union ; 
but  we  have  no  disposition  to  depart  from  our  own  well- 
considered  precedents,  which  have  withstood  the  test  of  time 
and  attained  the  dignity  of  canons  of  property  rights  in  this 
jurisdiction. 

The  case  in  judgment  is  ruled  by  our  own  decisions,  and  the 
decree  of  the  circuit  court  which  followed  them  is  without  error 
and  must  be  affirmed. 

Affirmed. 


6.    Wife's  Paraphernalia — Gifts  from  Husband  to  Wife. 
FARROW  v.  FARROW. 

•J2  X.  J.  Eq.  421,  65  Atl.  1009,  II  L.  R.  A.  (X.  S.)  389,  129 

Am.  St.  714.    (1907.) 

Action  by  a  wife  against  her  husband  to  recover  for  certain 
personal  property.  Judgment  for  plaintiff".  Affirmed  in  part 
and  reversed  in  part. 

TREXCHARD,  J. :  This  is  an  appeal  from  a  decree  of  tlie 
Court  of  Chancery.  The  bill  was  filed  by  Ethel  Farrow,  the 
respondent,  against  her  husband,  William  Farrow,  Jr.,  the  ap- 
pellant, v.'ho  was  living  apart  from  her,  for  the  recovery  of  the 
possession  or  the  value  of  one  solitaire  diamond  ring,  one  tur- 
quoise ring  with  sixteen  small  diamonds  around  it,  and  one  pair 
of  diamond  earrings,  that  were  in  the  possession  of  the  wife  at 
the  time  her  husband  separated  from  her,  and  which  were  then 


124  TRANSACTIONS    BETWEEN    HUSBAND   AND    WIFE. 

taken  by  him  forcibly,  and  since  have  been  converted  to  his  own 
use.  In  the  bill,  the  complainant  averred  that  these  jewels  had 
been  given  to  her  by  her  husband,  the  defendant,  and  tliat  he 
had  allowed  her  to  apply  them  to  her  separate  use.  The  prayer 
of  the  bill  is  that  the  defendant  "may  be  ordered  and  decreed  to 
deliver  to  your  oratrix  forthwith  said  personal  property,  or, 
in  case  he  has  sold  or  parted  witli  the  same,  he  may  be  ordered 
and  decreed  to  pay  to  your  oratrix  such  sum  or  sums  as  shall 
be  a  fair  value  of  the  same." 

The  answer  of  the  defendant  denies  that  the  complainant 
was  or  is  the  owner  of  the  said  jewels ;  denies  that  he  gave  tliem 
to  her,  and  that  he  allowed  her  to  apply  them  to  her  separate 
use.  It  avers  that  the  defendant  "bought  and  purchased  the 
jewelry  mentioned  in  tlie  bill  of  complaint  for  the  personal 
adornment  of  his  wife,  the  complainant,  but  that  he  never  gave 
said  jewelry,  or  any  part  thereof,  to  his  wife,  and  never  parted 
with  his  title  or  possession  to  said  jewelry,  and  that  they  are  his 
property  and  in  his  possession."  At  the  hearing  it  appeared 
that  the  defendant  had  parted  with  the  jewelry,  and  the  Court 
of  Chancery  decreed  "that  the  defendant  pay  unto  the  com- 
plainant by  way  of  compensation  for  said  solitaire  diamond 
ring,  turquoise  ring  with  sixteen  small  diamonds  around  it,  and 
a  pair  of  diamond  earrings,  the  sum  of  $670." 

On  this  appeal,  we  are  not  concerned  with  that  part  of  the 
decree  which  awards  compensation  for  the  solitaire  diamond 
ring,  because  it  appeared  at  the  hearing  that  it  was  given  by  the 
husband  to  tlie  wife  before  their  marriage  as  an  engagement 
ring.  The  gift  was  absolute,  and  the  property  remains  hers, 
notwithstanding  the  subsequent  marriage.  This  is  admitted  to 
be  the  legal  situation  by  the  defendant.  To  the  extent  that  tlie 
decree  directed  payment  for  the  value  of  tlie  solitaire  diamond 
ring  which  was  shown  to  be  $130,  it  was  admittedly  proper. 
The  controversy  on  this  appeal  is  concerning  the  propriety  of 
the  decree  so  far  as  it  relates  to  the  turquoise  ring  and  the  dia- 
mond earrings,  together  valued  at  $540.  The  complainant,  the 
wife,  claims  that  this  jewelry  was  given  to  her  by  her  husband 
during  coverture;  that  it  was  bought  on  the  installment  plan, 
and  that  a  considerable  amount  of  the  purchase  money  still  re- 
mained unpaid  at  the  time  when  the  husband  took  possession 
of  it.  This  is  stated  to  be  the  fact  by  the  wife,  who  says  the 
unpaid  amount  was  somewhere  about  $300.  She  then  goes  on 
to  say :  "We  paid  so  much  a  month.  We  undertook  to  pay  $40 
per  month.  We  didn't  always  pay  that  much.  We  paid  what 
we  thought  we  could.  We  thought  it  was  money  saved  to  buy 
the  diamonds.   That  was  the  agreement  between  Will  and  me. 


FARROW  V.   FARROW,  12$ 

That  was  the  reason  we  bought  them,"  In  the  same  connection 
she  says ;  "I  don't  remember  any  such  conversation  before  Mr. 
Eldridge.  No,  we  talked  about  these  affairs  between  our- 
selves. O.  Between  yourselves?  A.  Not  before  ]\Ir.  Eldridge. 
Q.  Then  after  you  were  by  yourselves?  A.  Yes,  sir;  at  times 
we  talked  over  buying  diamonds  to  save  money,  we  did ;  yes." 
The  testimony  shows  beyond  question  that  the  jewelry  was 
purchased  \\iLh  the  husband's  money.  It  therefore  was  his 
property,  unless  it  was  bestowed  by  him  upon  his  wife  as  a 
gift.  A  gift  of  personal  property  from  husband  to  wife  must 
be  clearly  proved.  There  must  be  a  clear  and  convincing  evi- 
dence of  a  delivery  of  the  property  by  the  husband  with  the 
intention  of  divesting  himself  of  all  dominion  and  control  of  it 
and  of  vesting  title  in  the  wife.  Skillman  v.  Skillman,  13  N.  J. 
Eq.  403;  Dilts  V.  Stevenson,  17  N.  J.  Eq.  407.  See,  also,  14 
Am.  &  Eng.  Encyl,  L.  (2d  ed.)  1033,  and  cases  there  cited. 

Applying  these  principles  to  the  case  under  consideration,  we 
find  nothing  to  justify  the  claim  of  the  wife  that  the  jewelry 
was  bestowed  upon  her  by  her  husband  as  a  gift.  The  evidence 
shows  that  it  Vv'as  purchased  by  the  husband,  not  as  a  gift  to 
his  wife,  but  as  an  investment  for  their  joint  benefit,  and  also 
for  the  purpose  of  ornamenting  the  wife  on  suitable  occasions ; 
in  other  words,  either  it  remained  tlie  absolute  property  of  the 
husband,  or,  at  most,  it  became  the  wife's  paraphernalia.  In 
either  event,  the  husband  was  entitled  to  take  possession  of  it, 
and  deal  with  it  as  he  saw  lit.  Of  course,  this  is  true  if  it  be- 
came his  absolute  property,  and  there  remains  only  to  be  con- 
sidered the  legal  situation  if  it  became  the  wife's  paraphernalia. 

At  common  law,  the  husband  is  bound  to  maintain  the  wife, 
and  to  provide  her  with  suitable  clotliing  appropriate  to  their 
degree,  and  his  own  circumstances  and  social  position.  That 
common-law  obligation  still  rests  upon  the  husband.  As  corol- 
lary to  this  obligation,  the  common  law  recognizes  tliat  articles 
of  clothing,  and  personal  ornaments  appropriate  for  the  wife, 
which  are  purchased  with  the  husband's  money,  or  upon  his 
credit,  are  his  property,  notwithstanding  the  fact  that  they  are 
selected  and  purchased  by  the  wife,  or  are  intended  for  her 
personal  and  exclusive  use.  The  wife's  clothing  and  ornaments 
are  called  her  paraphernalia,  and  the  common-law  rule,  tliat  tlie 
ownership  thereof  during  the  life  of  the  husband  was  in  him, 
remains  in  force  in  all  jurisdictions  where  that  rule  has  not  been 
abrogated  by  statute.  It  had  not  been  abrogated  in  this  state 
by  the  married  woman's  act  (Gen.  Stat.,  p.  2012),  or  by  any 
other  statutory  provisions.  Except  in  cases  where  the  wife  her- 
self purchases  the  paraphernalia  witli  her  own  separate  money 


126  TRANSACTIONS    BETWEEN    HUSBAND    AND    WIFE. 

or  earnings,  the  rule  remains  exactly  as  it  stood  at  common 
law.  In  Massachusetts,  it  has  been  judicially  declared  that  the 
common-law  rule  still  prevails  because  of  the  absence  of  stat- 
utory provision  changing  it.  Hawkins  v.  Providence  &  Worces- 
ter Railroad,  119  Mass.  596,  20  Am.  Rep.  353.  So,  too,  in 
IMichigan,  the  same  rule  prevails,  and  for  the  same  reason. 
Smith  V.  Abair,  87  Mich.  62,  49  N.  W.  509.  If,  therefore,  the 
jewelry  became  the  paraphernalia  of  the  wife,  then  the  com- 
mon-law doctrine  of  paraphernalia  applies,  and  that  is  this: 
That  "suitable  ornaments  and  wearing  apparel  of  a  married 
woman,  which  come  to  her  through  her  husband  during  cover- 
ture, remain  his  personal  property  during  his  life,  and  he  may 
sell  and  dispose  of  them  during  his  life."  Schouler's  Domestic 
Relations  (5th  ed.),  p.  208. 

So  much  of  the  decree  as  adjudges  that  the  defendant  make 
compensation  unto  the  complainant  for  the  turquoise  ring  v/ith 
sixteen  small  diamonds  around  it,  and  for  the  pair  of  diamond 
earrings,  should  be  reversed.  As  the  complaint  was  admittedly 
entitled  to  a  decree  for  the  value  of  the  solitaire  diamond  ring, 
which  was  $130,  she  is  entitled  to  costs  in  the  court  below. 


7.    Antenuptial  Settlements. 

LANDES  v.  LANDES. 
(111.)   108  N.  E.  691.    (1915-) 

Suit  by  Bertie  A.  Landes  to  cancel  an  antenuptial  contract. 
Decree  for  defendants.   Affirmed. 

WATSON,  J. :  This  litigation  concerns  the  estate  of  Silas  Z. 
Landes,  deceased,  and  arises  upon  a  bill  in  equity  filed  by  his 
widow,  Bertie  A.  Landes,  against  his  children,  Bernard  _S. 
Landes  and  Pauline  S.  Eichhorn,  and  the  executor  of  his  will, 
certain  trustees,  and  all  devisees  and  legatees  named  in  the 
will.  Prior  to  the  filing  of  the  bill  the  widow  filed  the  statutory 
renunciation  of  the  benefits  conferred  upon  her  by  the  will  and 
her  election  to  take  from  the  estate  under  the  laws  of  the  state. 
The  cause  was  heard  before  the  chancellor  upon  an  amended 
bill  (which  will  be  referred  to  herein  as  the  bill),  the  answer 
of  the  several  defendants  (one  of  whom,  being  a  minor,  an- 
swered by  a  guardian  ad  litem),  and  replications  to  tlie  answers. 


LAXDES  V.   LAXDES.  12/ 

The  evidence  was  taken  and  heard  in  open  court,  and  without 
reference  to  a  master  in  chancery,  and  a  decree  was  rendered 
finding  tlie  isues  for  the  defendants  and  dismissing  the  bill  for 
want  of  equity,  at  complainant's  cost.  Thereupon  this  writ  of 
error  was  caused  to  issue  out  of  this  court;  tlius  bringing  the 
record  before  us  for  review. 

The  purpose  and  object  of  the  bill  here  under  consideration 
are  to  have  canceled  and  declared  void  a  certain  antenuptial 
contract  made  by  and  between  the  complainant,  while  her  name 
was  Bertie  Carpenter,  and  Silas  Z.  Landes,  bearing  date  July 
1 6,  1909,  the  execution  of  which  contract  by  the  complainant, 
she  alleges,  was  the  result  of  fraud  and  deceit  practiced  upon 
her  by  the  other  party  thereto,  he  being  her  affianced  husband, 
and  it  is  the  duty  of  this  court  to  determine  whether  the  decree 
of  the  circuit  court  is  justified  by  the  law  and  rests  upon  a 
sound  basis  in  evidence  that  is  both  credible  and  free  from 
legal  objection. 

[The  court  here  sets  out  the  substance  of  the  contract,  the 
property  involved,  the  previous  relations  of  the  parties  and  the 
circumstances  attending  the  execution  of  the  contract.  The 
contract  was  executed  and  the  marriage  celebrated  in  1909, 
and  the  husband  died  in  1910.  After  giving  the  history  of  the 
case,  the  court  continues:] 

The  relation  of  the  parties,  being  confidential,  calls  for  the 
exercise  of  a  high  degree  of  fairness  and  good  faith  on  the  part 
of  each.  Hessick  v.  Hessick,  169  111.  486,  48  N.  E.  712 ;  Taylor 
V.  Tavlor,  144  I^.  436,  33  N.  E.  532;  Achilles  v.  Achilles,  151 
111.  136,  37  N.  E.  693;  Russell  v.  Russell  (C.  C.)  129  Fed.  434; 
Kline  v.  Kline,  57  Pa.  120,  98  Am.  Dec.  206;  2  Beach  on  Con- 
tracts, §  1300.  If  the  provision  for  the  wife  is  disproportion- 
ately small,  those  contending  for  the  validity  of  the  contract 
have  the  burden  of  proving  knowledge  in  the  wife  of  all  facts 
materiallv  affecting  her  rights.  Warner  v.  Warner,  235  111. 
448,  85  N.  E.  630;  Pierce  v.  Pierce,  71  N.  Y.  154,  27  Am.  Rep. 
22.  Reputation  for  wealth  is  not  sufficient  to  charge  the  woman 
with  notice  of  the  kind  and  amount  of  the  man's  property. 
T^Iines  v.  Phee,  254  111.  60,  98  N.  E.  260.  The  rules  governing 
tlie  construction  of  contracts  apply  here.  Collins  v.  Phillips, 
259  111.  405,  102  N.  E.  796,  Ann.  Cas.  1914C,  188.  Antenuptial 
contracts  should  be  dispensed  with  if  they  are  to  be  held  invalid 
solely  because  the  wife  does  not  receive  as  much  as  she  would 
if  there  were  no  contract.  Stokes  v.  Stokes,  240  111.  330,  88 
N.  E.  829.  The  surrounding  circumstances  and  the  ownership 
by  the  parties  of  farms  in  the  same  neighborhood  show  the 
w-ife  reasonablv  should  have  had  knowledge  of  the  value  of  tlie 


128  TRANSACTIONS    BETWEEN    HUSBAND   AND    WIFE. 

husband's  property.  Achilles  v.  Achilles,  supra;  Yarde  v. 
Yarde,  187  III.  636,  58  N.  E.  600. 

Applying  now  th-e  said  principles  to  the  contract  here  in- 
volved and  to  the  facts  surrounding  it,  we  find  that,  upon  sure 
information  imparted  to  her  by  her  father  and  by  Ramsey, 
plaintiff  in  error  knew  Judge  Landes  was  worth  somewhere 
from  $100,000  to  $200,000.  If  she  chose  to  take  the  lowest 
figure  as  correct,  she  was  apparently  willing  to  make  the  bar- 
gain for  $10,000,  a  sum  vastly  less  than  she  would  have  re- 
ceived had  she  become  his  wife  without  a  business  arrange- 
ment. The  estate  proved  to  be  worth  about  $130,000,  of  which 
some  $85,000  was  in  real  estate.  Allowing  for  the  facts  that 
some  of  his  personal  holdings  were  worth  more  than  par,  that 
he  had  made  some  small  changes  in  the  identity  of  his  prop- 
ert>%  and  that  he  had  received  considerable  income  between 
the  date  of  the  contract  and  his  death,  we  conclude  he  made  a 
more  detailed  and  accurate  statement  of  his  property  to  his 
intended  wife  than  the  rules  of  law  or  equity  require. 

It  will  be  observed  that  he  listed  his  personal  property  at  its 
par  or  face  value,  and  did  not  value  his  real  estate  in  the  con- 
tract. Valuations,  both  on  real  and  personal  properties,  are  but 
estimates,  and  Judge  Landes  was  under  no  legal  obligation  to 
inform  his  betrotlied  as  to  his  estimates  of  value,  but  he  was 
required  to,  and  we  think  did,  inform  her  substantially  as  to 
what  he  owned,  and  he  was  required  to  so  describe  and  locate 
his  property  as  to  enable  the  plaintiff  in  error,  by  the  use  of 
ordinary  means  within  easy  reach  of  every  intelligent  person, 
to  determine  the  truth  and  accuracy  of  his  statements.  Taylor 
V.  Taylor,  supra;  Achilles  v.  Achilles,  supra;  Hessick  v.  Hes- 
sick,  supra;  Yarde  v.  Yarde,  supra.  Having  known  Judge 
Landes  well  from  her  childhood,  having  lived  for  many  years 
in  the  same  small  community,  having,  by  inheritance,  real 
estate,  both  farm  and  city  property,  not  remote  from  his  own, 
being  well  acquainted  among  the  professional  and  business 
men  of  Mt.  Carmel  (one  of  the  latter  being  her  son-in-law), 
it  would  have  been  no  difficult  matter  for  the  plaintiff  in  error 
to  get  reliable  estimates  of  value  on  the  items  of  real  and 
personal  property  mentioned  in  the  contract,  a  copy  of  which 
she  seems  to  have  had  almost  tliree  weeks  after  it  was  signed 
and  before  the  marriage. 

We  hold  also  that  this  contract  was  fully  ratified  and  con- 
firmed by  the  plaintiff  in  error  on  several  different  occasions 
after  the  marriage,  notably:  (i)  When  she  wrote  a  receipt  on 
it  for  $50  on  September  15,  1909;  (2)  by  the  execution  of  the 
contract  prepared  by  Kolb  the  day  before  her  husband's  death. 


PREVVIT  V.  WILSON.  1 29 

containing-  the  clause  expressly  ratifying  and  confirminfr  the 
antcnuiJlial  contract;  (3)  in  her  conversation  with  Trustee  Ris- 
ley  about  collecting  the  balance  due,  after  her  husband's  death  ; 
and  (4)  by  signing  a  receipt  for  $500,  on  account  of  the  con- 
tract, at  the  bank,  on  August  26,  1910. 

There  are  other  objections  to,  and  criticisms  of,  the  decree 
and  of  the  rulings  of  the  court  upon  the  admission  of  evidence 
which  we  do  not  find  it  necessary  to  consider  and  pass  upon 
in  detail,  but  from  what  is  above  said  we  have,  no  doubt,  made 
it  clear  that  Judge  Landes  committed  no  fraud  and  practiced 
no  deceit  upon  the  plaintiff  in  error  in  order  to  induce  her  to 
execute  the  contract  now  complained  of;  that  after  her  mar- 
riage, and  after  his  death,  she  ratified  and  confirmed  the  con- 
tract freely  and  voluntarily  and  witliout  the  practice  of  fraud 
or  deceit  by  any  one. 

The  decree  of  the  circuit  court  must  be  and  is  therefore, 
affirmed. 

Decree  affirmed. 


PREWIT  V.  WILSON. 

103  U.  S.  22,  26  L.  Ed.  360.    (1880.) 

Suit  to  set  aside  an  antenuptial  settlement  for  fraud  on 
grantor's  creditors.  Decree  for  plaintiff.  Reversed  with  direc- 
tions to  dismiss  tlie  bill. 

MR.  JUSTICE  FIELD  delivered  the  opinion  of  the  court. 

On  the  27th  of  April,  1866,  ]\lrs.  Josephine  Prewit  was  a 
widow,  only  twenty  years  of  age.  Her  husband  was  the  late 
John  Prewit.  Not  many  months  after  his  death  another  Mr. 
Prewit — Richard,  this  time — proposed  marriage  to  her.  He 
was  of  mature  age,  being  in  his  fifty-eighth  year.  His  pro- 
posal was  rejected.  He  renewed  it,  and  accompanied  it  with 
a  promise  to  settle  upon  her,  if  she  would  consent  to  the  mar- 
riage, a  large  amount  of  property.  This  promise  moved  her 
to  consent.  The  deed  of  settlement  was  accordingly  executed, 
and  in  May  following  the  marriage  took  place.  Both  parties 
affirm  that  the  marriage  was  the  only  consideration  for  the 
settlement,  and  it  is  so  stated  In  the  deed. 

A  little  more  than  two  years  and  a  half  afterwards, — in  De- 
cember, 186S, — the  husband  was  adjudged  to  be  a  bankrupt  in 
die  District  Court  of  the  L^nited  States  for  the  Northern  Dis- 
Q — Cases  Dom.  Rel. 


130  TRANSACTIONS    BETWEEN    HUSBAND   AND    WIFE. 

trict  of  Alabama,  in  proceedings  taken  upon  his  own  applica- 
tion; and  in  the  following  month  the  plaintiff  was  appointed 
assignee  of  his  effects,  and  to  him  an  assignment  was  made. 
The  present  suit  is  brought  by  him  to  set  aside  tlie  deed  of 
settlement,  on  the  alleged  ground  that  it  was  executed  by 
Prewit  to  defraud  his  creditors. 

At  the  time  of  the  settlement  Prewit  was  the  holder  of  a 
large  amount  of  property,  consisting  chiefly  of  lands  in  Ala- 
bama, but  was  indebted  in  an  amount  greater  than  their  value. 
It  is  stated  that  his  property  was  not  worth  more  than  $50,000, 
and  that  his  debts  exceeded  $70,000. 

It  would  seem  from  the  evidence,  and  we  assume  it  to  be  a 
fact,  that  he  was  insolvent  at  the  time  he  executed  the  deed 
of  settlement,  in  the  sense  that  his  debts  largely  exceeded  the 
value  of  his  property.  It  may  also  be  taken  as  true,  as  far  as 
the  present  suit  is  concerned,  that  he  intended  by  the  deed  to 
hinder,  delay  and  defraud  his  creditors,  and  that  he  made  the 
settlement  to  place  his  property  beyond  their  reach. 

There  is  no  evidence  that  Mrs.  Prewit  was  aware  at  the  time 
of  the  amount  of  property  he  held,  or  of  the  extent  of  his  debts, 
or  that  he  had  any  purpose  in  the  execution  of  the  deed  except 
to  induce  her  to  consent  to  the  marriage.  It  is  not  at  all  likely, 
judging  from  the  ordinary  motives  governing  men,  that  whilst 
pressing  his  suit  vnth  her,  and  offering  to  settle  property  upon 
her  to  obtain  her  consent  to  the  marriage,  he  informed  her  that 
he  was  insolvent,  and  would,  by  the  deed  he  proposed  to  exe- 
cute, defraud  his  creditors.  If  he  intended  to  commit  the 
fraud  imputed  to  him,  it  is  unreasonable  to  suppose  that  he 
would,  by  unfolding  his  scheme,  expose  his  true  character  to 
one  whose  good  opinion  he  was  at  that  time  anxious  to  secure. 
If  capable  of  the  fraud  charged,  he  was  capable  of  deceiving 
I\Irs.  Prewit  as  to  his  pecuniary  condition.  She  states  in  her 
answer  that  she  knew  he  was  embarrassed  and  in  debt,  but  to 
what  extent  or  to  whom  she  did  not  know,  and  that  it  was  be- 
cause of  the  knowledge  that  he  was  embarrassed  that  she 
insisted  upon  his  making  a  settlement  upon  her.  The  deed  it- 
self shows  that  he  owed  a  large  sum,  for  of  the  6,770  acres  of 
land  embraced  by  it,  2,185  acres  were  charged  with  the  pay- 
ment of  certain  designated  debts  to  the  amount  of  $18,000.  A 
knowledge  of  these  facts  justified  her  in  saying  that  she  knew 
he  was  embarrassed;  but  they  rather  dispelled  than  created 
any  suspicion  that  he  had  a  design  to  defraud  his  creditors. 
Her  statements  do  not  warrant  the  inference  of  knowledge  of 
any  such  purpose,  much  less  of  any  assent  to  its  execution. 
Besides  the  property  charged  In  the  deed  with  the  payment  of 


PREWIT  V.  WILSON.  I3I 

the  large  amount  of  indebtedness  mentioned,  he  owned  4,700 
acres  of  land  not  included  in  it,  and  personal  property  of  the 
value  of  several  hundred  dollars. 

When  a  deed  is  executed  for  a  valuable  and  adequate  consid- 
eration, without  knowledge  by  the  grantee  of  any  fraudulent 
intent  of  the  grantor,  it  will  be  upheld,  however  fraudulent  his 
purpose.  To  vitiate  the  transfer  in  such  case,  the  grantee  also 
must  be  chargeable  with  knowledge  of  the  intention  of  the 
grantor. 

Now,  marriage  is  not  only  a  valuable  consideration,  but,  as 
Coke  says,  there  is  no  other  consideration  so  much  respected 
in  the  law.  Bishop  justly  observes,  that,  "Alarriage  is  at- 
tended and  followed  by  pecuniary  consequences ;  by  happiness 
or  misery  to  the  parties ;  by  life  to  unborn  children ;  by  unquiet 
or  repose  to  the  state ;  by  what  money  ordinarily  buys  and  by 
what  no  money  can  buy,  to  an  extent  which  can  not  be  esti- 
mated or  expressed,  except  by  the  word  'infinite.'  To  say, 
therefore,  that  it  is  to  be  regarded,  where  it  is  the  inducement 
to  any  contract,  as  a  valuable  consideration,  is  to  utter  truth, 
yet  only  a  part  of  the  truth."  And,  also,  that,  "IMarriage  is  to 
be  ranked  among  the  valuable  considerations,  yet  it  is  distin- 
guishable from  most  of  these  in  not  being  reducible  to  a  value 
which  can  be  expressed  in  dollars  and  cents,  while  still  it  is  in 
general  terms  of  the  very  highest  value."  Law  of  IMarried 
Women,  §§  775,  776.  Such  is  the  purport  and  language  run- 
ning through  all  the  decisions,  both  in  England  and  in  this  coun- 
try, with  reference  to  marriage  as  a  consideration  for  an  ante- 
nuptial settlement.  Barrow  v.  Barrow,  2  Dick.  504;  Nairn  v. 
Prowse,  6  Ves.  Jr.  752;  Campion  v.  Cotton,  17  Ves.  Jr.  264; 
Sterry  v.  Arden,  i  Johns.  (N.  Y.),  ch.  261 ;  Herring  v.  Wick- 
ham,  29  Gratt.  (Va.)  628. 

In  ]\Iagniac  v.  Thompson  this  court  said  that,  "Nothing  can 
be  clearer,  both  upon  principle  and  authority,  than  the  doctrine 
that  to  make  an  antenuptial  settlement  void,  as  a  fraud  upon 
creditors,  it  is  necessary  that  both  parties  should  concur  in  or 
have  cognizance  of  the  intended  fraud.  If  the  settler  alone 
intend  a  fraud  and  the  other  party  have  no  notice  of  it,  but  is 
innocent  of  it,  she  is  not  and  can  not  be  affected  by  it.  Mar- 
riage, in  contemplation  of  the  law,  is  not  only  a  valuable  con- 
sideration to  support  such  a  settlement,  but  is  a  consideration 
of  the  highest  value,  and  from  motives  of  the  soundest  policy  is 
upheld  with  a  steady  resolution."  7  Pet.  (U.  S.)  348,  393.  The 
same  doctrine  is  asserted  by  the  Supreme  Court  of  Alabama, 
in  which  state  tlie  parties  to  the  deed  of  settlement  reside  and 
in  which  it  was  executed.  Andrews  v.  Jones,  10  Ala.  400. 


132  TRANSACTIONS    BETWEEN    HUSBAND   AND    WIFE. 

According  to  these  authorities  there  can  be  no  question  of 
tlie  vahdity  of  tlie  settlement  in  this  case.  There  is  an  entire 
absence  of  elements  which  would  vitiate  even  an  ordinary 
transaction  of  sale  where,  if  set  aside,  the  parties  may  be 
placed  in  their  former  positions.  And  an  antenuptial  settle- 
ment, tliough  made  with  a  fraudulent  design  by  the  settler, 
should  not  be  annulled  without  the  clearest  proof  of  the  wife's 
participation  in  the  intended  fraud,  for  upon  its  annulment 
there  can  follow  no  dissolution  of  the  marriage,  which  was  the 
consideration  of  the  settlement. 

It  follows  that  the  decree  of  the  court  below  must  be  re- 
versed, and  the  cause  remanded  with  directions  to  dismiss  the 
bill  of  complaint;  and  it  is  so  ordered. 


8.    Postnuptial  Settlements. 

WILLIAAIS  V.  HARRIS. 
4  S.  Dak.  22,  54  N.  W.  926,  46  Am.  St.  753.    (1893.) 

Action  by  Mrs.  Annie  E.  Williams  and  another  to  set  aside 
a  sale  on  execution  by  defendant  Harris,  as  sheriff,  of  certain 
property  which  had  been  conveyed  to  Mrs.  Williams  by  her 
husband  a  short  time  before  the  sale,  and  which  has  been  sold 
by  defendant  to  satisfy  judgments  against  plaintiff's  husband. 
Judgment  for  plaintiffs.  Affirmed. 

BENNETT,  P.  J. :  *  *  *  The  appellants  further  con- 
tend that  the  conveyance  of  the  lands  and  lots  made  by  Wil- 
liams, the  husband,  to  his  wife,  was  fraudulent,  and  was  made 
to  hinder,  delay,  and  defraud  creditors,  and  therefore  void. 
"Fraud"  is  a  difficult  thing  to  define.  Courts  have  skilfully 
avoided  giving  a  precise  and  satisfactory  definition  of  it,  so 
various  are  its  forms  and  colors.  It  is  sometimes  said  to  con- 
sist of  "any  kind  of  artifice  employed  by  one  person  to  deceive 
another,"  conduct  that  operates  prejudicially  on  tlie  rights  of 
another,  or  withdraws  the  property  of  a  debtor  from  the  reach 
of  creditors.  McKibbin  v.  Martin,  64  Pa.  St.  356;  Shoe- 
maker V.  Cake,  83  Va.  5,  i  S.  E.  387.  It  is  to  be  inferred,  or 
not,  according  to  the  special  circumstances  of  every  case.     It 


WILLIAMS  V.   HARRIS.  1 33 

is  the  judgment  of  law  on  facts  and  intents.  Pettibone  v. 
Stevens,  15  Conn.  26;  Sturtevant  v.  Ballard,  9  Johns  (N.  Y.) 
342.  Its  existence  is  often  a  presumption  of  law  from  admitted 
or  established  facts,  irrespective  of  motive,  and  too  strong  to 
be  rebutted.  Bel  ford  v.  Crane,  16  N.  J.  Eq.  265.  Fraud  is 
always  a  question  of  fact,  with  reference  to  the  intentions  of 
the  grantor.  Where  there  is  no  fraud,  tliere  is  no  infirmity  in 
the  deed.  Every  case  depends  upon  its  circumstances,  which 
are  to  be  carefully  scrutinized.  But  the  vital  question  is  always 
the  good  faith  of  the  transaction.  There  is  no  other  test.  U.  "S. 
V.  Amistad,  15  Pet.  (U.  S.)  594 ;  Loyd  v.  Fulton,  91  U.  S.  485  ; 
Humes  v.  Scrug.^s,  94  U.  S.  22;  Knowlton  v.  Mish,  8  Sawy. 
(U.  S.)  627,  17  Fed.  198.  To  establish  fraud  the  evidence  is 
almost  always  circumstantial.  From  the  nature  of  the  case,  it 
can  rarely  ever  be  proved  otlierwise;  and  if  the  facts  and  cir- 
cumstances surrounding  the  case,  and  directly  proved,  are  such 
as  would  lead  a  reasonable  man  to  the  conclusion  tliat  fraud  in 
fact  existed,  this  is  all  the  proof  which  the  law  requires. 

The  above  may  be  considered  the  general  principles  in  rela- 
tion to  fraud,  as  applied  to  tlie  ordinary  transactions  of  life. 
The  question  of  dishonesty  in  this  transaction  rests  solely  upon 
the  ground  that  it  was  made  by  an  insolvent  debtor  to  his  wife. 
Husband  and  wife  have  been  made,  by  legislation,  independent 
legal  personages  in  most,  if  not  all,  of  the  states ;  the  statute 
conferring  upon  married  women  the  power  to  hold  and  convey 
property  much  the  same  as  though  they  were  single.  Tliis  fact 
has  sometitmes  encouraged  husbands  to  confide  to  the  keeping 
of  their  wives  property  which  should  have  been  turned  over  to 
the  creditors  of  the  husband.  A  debtor,  when  threatened  with 
insolvency,  naturally  reposes  confidence  in  his  wife,  and  there 
may  be  instances  when  she  becomes  wrongfully  possessed  of 
funds  and  property  which  the  law  says,  of  right,  should  be  di- 
verted to  tlie  payment  of  the  husband's  debts ;  but  as  was  said 
in  Patton  v.  Conn,  114  Pa.  St.  183,  6  Atl,  468,  "A  wife  can 
become  an  honest  creditor  of  her  husband,  and  he  may  pay  an 
honest  debt  to  her,  though,  as  to  other  creditors,  tlie  claims  may 
appear  stale  and  ancient." 

In  many  respects  a  wife  may,  under  the  existing  policy  of 
the  law,  deal  with  her  husband,  as  regards  her  separate  estate, 
upon  the  same  terms  as  though  the  relationship  had  no  exist- 
ence. Thus,  in  a  recent  case  in  ^Massachusetts  (Bank  v.  Tav- 
ener,  130  ]\Iass.  407),  in  which  the  opinion  was  rendered  by 
Chief  Justice  Gray,  now  one  of  tlie  justices  of  the  Supreme 
Court  of  the  United  States,  it  was  decided  that  where  the  wife 
loaned  her  husband,  upon  the  promise  of  repayment,  money 


134  TRANSACTIONS    BETWEEN    HUSBAND   AND    WIFE. 

constituting  a  part  of  her  separate  estate,  a  conveyance  of 
land  made  by  him  to  her  tlirough  a  third  person,  in  repayment 
of  such  loan,  and  free  from  a  fraudulent  design,  would  be  valid 
against  his  creditors.  See,  also,  IVIedsker  v.  Bonebrake,  io8 
U.  S.  66,  2  Sup.  Ct  351 ;  Tomlinson  v.  Matthews,  98  111.  178; 
Jewett  V.  Noteware,  30  Hun  194 ;  French  v.  Motley,  63  Maine 
326;  Grabill  v.  ]\Ioyer,  45  Pa.  St.  530;  Langford  v.  Thurlby, 
60  Iowa,  105,  14  N.  W.  135. 

Transactions  between  husband  and  wife,  to  the  prejudice  of 
the  husband's  creditors,  however,  are  usually  scanned  closely 
by  the  courts,  and  the  good  faith  in  them  must  be  clearly  estab- 
lished. As  was  observed  in  tlie  case  of  Hoxie  v.  Price,  31  Wis. 
86,  "on  account  of  tlie  great  facilities  which  the  marriage  rela- 
tion affords  for  the  commission  of  fraud,  these  transactions 
between  husband  and  wife  should  be  closely  examined  and 
scrutinized,  to  see  that  they  are  fair  and  honest,  and  not  mere 
contrivances  resorted  to  for  the  purpose  of  placing  the  hus- 
band's property  beyond  the  reach  of  creditors."  In  all  such 
cases  the  parties  are  under  the  temptation  to  do  themselves 
more  than  justice.  In  Post  v.  Stiger,  29  N.  J.  Eq.  556,  the 
court  says:  "A  claim  by  a  wife  against  the  husband,  first  put 
in  writing  when  his  liabilities  began  to  jeopardize  his  future, 
should  always  be  regarded  with  watchful  suspicion,  and  when 
attempted  to  be  asserted  against  creditors  upon  the  eyidence  of 
the  parties,  alone,  uncorroborated  by  other  proof,  should  be 
rejected  at  once,  unless  their  statements  are  as  full  and  con- 
vincing as  to  make  the  fairness  and  justice  of  the  claim  mani- 
fest."   Lee  v.  Cole,  44  N.  J.  Eq.  328,  15  Atl.  531. 

A  transfer  of  a  considerable  portion  of  property  by  a  debtor, 
when  in  failing  circumstances,  to  his  wife,  immediatetly  after 
acquiring  it,  may  excite  suspicion,  and,  unexplained,  may  seem 
a  presumption  of  fraud.  But  parties  may  always  come  in,  and 
remove  all  taint  of  suspicion,  by  showing  the  utmost  good  faith 
in  the  transaction. 

In  the  case  at  bar  the  plaintiff  has  shown,  in  a  very  clear 
and  convincing  manner,  that  she  'on  several  occasions  had 
loaned  her  husband  various  amounts  of  money  to  assist  him  in 
carrying  on  his  business,  and  that  these  several  amounts  were 
evidenced  by  his  promissory  notes,  which  were  unpaid  on  the 
day  the  transfer  in  question  was  made.  Then  he  stated  to  her 
that  he  had  sold  his  stock  of  goods  for  this  property  and  sev- 
eral tracts  of  land ;  that  he  was  unable  to  pay  her  the  money 
due  her  in  cash,  but  he  would  give  her  this  real  estate  for  the 
notes  she  held  against  him.  This  she  assented  to,  and  the  trans- 
fer was  made.     Furthermore,   the  plaintiff  shows  that  the 


BEECnER  V.  WILSON.  1 35 

money  loaned  to  her  husband  was  of  her  own  separate  estate, — 
money  obtained  by  her  from  her  father's  estate,  and  money 
earned  by  her  teaching  school, — and  that  none  of  it  came  from 
her  husband.  The  separate  property  rights  of  husband  and 
wife,  and  their  independence  from  each  other  in  business  trans- 
actions, are  carefully  defmed  and  established  by  our  statutes. 
See  §§  2589,  2590,  2593,  2594,  2600,  Comp.  Laws. 

Even  the  fact  that  the  husband  has  a  fraudulent  intent  will 
not  defeat  the  title,  unless  the  wife  knows  he  has  such  fraudu- 
lent intent.  In  the  case  of  Manufacturing  Co.  v.  Alastin, 
(Iowa),  39  N.  W.  Rep.  219, — a  case  clearly  in  point, — the  court 
said  of  the  wife:  "She  was  a  creditor  of  her  husband,  and  he 
had  the  right  to  secure  and  pay  her,  as  any  other  creditor.  He 
conveyed,  and  she  accepted,  land  in  payment  for  such  indebted- 
ness; and  it  is  immaterial  if  her  husband  did  at  tlie  same  time 
sell,  substantially,  all  the  property  he  had,  and  it  is  immaterial 
if  it  was  done  hastily,  with  an  apparent  design  to  place  the  title 
of  the  property  beyond  tlie  reach  of  the  plaintiffs,  for  the  rea- 
son that  Robert  Mastin  had  the  right  to  prefer  one  creditor 
to  another,  and  his  wife  had  the  right  to  insist  on,  and  accept, 
all  she  was  legally  entitled  to.  The  value  of  the  land  did  not  ex- 
ceed the  amount  of  the  indebtedness."  See,  also,  Buhl  v. 
Peck,  70,  Mich.  44,  37  N.  W.  876;  Deering  v.  Lawrence,  79, 
Iowa  610,  44  N.  W.  899.  In  the  case  at  bar  the  testimony  of 
LIrs.  Williams  and  the  testimony  of  Williams  is  clear  and 
undisputed  that  the  purpose  and  intent  in  making  the  transfer 
were  for  the  payment  of  the  money  loaned  by  the  wife  to 
the  firm  of  Williams  &  Pryce  and  to  William  B.  Williams, 
the  grantor.  Under  the  facts  established  by  the  evidence  the 
court  below  was  clearly  right  in  its  judgment,  and  it  is  affirmed. 


BEECHER  v.  WILSON. 

84  Va.  813,  6  S.  E.  209,  10  Am.  St.  883.    (1888.) 

Suit  to  set  aside  a  postnuptial  deed  of  settlement,  as  fraudu- 
lent as  against  grantor's  creditors.  Settlement  set  aside. 
Decree  affirmed. 

FAUNTLEROY,  J. :  This  is  an  appeal  from  the  decree 
of  the  Circuit  Court  of  King  William  County,  entered  on 
the  25th  day  of  October,  1886,  in  a  chancery  cause  therein 
pending,   wherein  the  appellees,  Wilson,   Burns  &  Co.,   and 


136  TRANSACTIONS    BETWEEN    HUSBAND   AND    WIFE. 

Others,  are  complainants,  and  the  appellants,  O.  Beecher,  Jr., 
trustee,  O.  Beecher,  and  Angelina  Beecher,  his  wife,  are  de- 
fendants. On  the  2 1  St  day  of  April,  1885,  O.  Beecher  was 
the  owner  of  a  valuable  farm  in  King  William  County,  Va., 
called  "Riverside,"  containing  398  acres,  which  was  conveyed 
to  him  April  17,  1879,  for  the  purchase  price  of  $6,870,  which 
farm  was  well  stocked,  and  upon  which  the  said  Beecher 
erected  a  valuable  dwelling  and  other  improvements.  At  that 
time  tlie  said  O.  Beecher  was  heavily  indebted;  and  on  the 
said  2ist  day  of  April,  1885,  he  conveyed  350  acres  of  the 
said  farm,  and  all  personal  property  thereon,  including  the 
stock  and  crops,  to  his  son,  O.  Beecher,  Jr.,  as  trustee,  for 
the  seperate  use  of  his  wife,  Angelina  Beecher.  On  the  4th 
day  of  January,  1886,  the  bill  in  this  cause  was  filed,  charg- 
ing that  the  said  deed  of  settlement  was  without  valuable 
consideration,  fraudulent,  and  void,  and  made  with  intent  to 
hinder,  delay,  and  defraud  creditors,  and  praying  that  the  said 
deed  be  vacated  and  set  aside,  and  the  land  settled  thereby 
be  sold,  and  the  proceeds  applied  to  the  payment  of  com- 
plainants' debts.  The  defendants,  O.  Beecher,  and  Angelina 
Beecher,  his  wife,  and  O.  Beecher,  Jr.,  trustee,  answered  the 
bill,  and  denied  the  allegations  of  fraud,  and  averred  that  the 
deed  was  made  for  a  valuable  consideration,  and  with  bona 
fide  intent,  in  consideration  of  the  money  of  the  wife,  Angelina 
Beecher,  having  been,  at  various  times  and  ways  set  forth  in 
the  payment  of  tlie  purchase  money  for  the  Riverside  farm, 
to  the  aggregate  amount  of  $5,900,  upon  a  contemporaneous 
agreement  that  she  should  be  properly  secured  therefor.  Dep- 
ositions were  taken,  and  at  the  hearing  of  the  cause  the 
court  held  the  deed  of  settlement  to  be  without  valuable  con- 
sideration, and  made  with  intent  to  hinder,  delay,  and  defraud 
creditors,  and  therefore  fraudulent  and  void;  and  from  the 
decree  to  this  effect  this  appeal  is  taken. 

The  deed  of  settlement  of  April  21,  1885,  which  is  attacked 
by  creditors  whose  debts  or  claims  against  the  husband  and 
settler  antedated  the  deed,  and  are  admittedly  just,  is  in  date, 
in  form,  in  fact,  and  in  every  characteristic  feature,  a  post- 
nuptial settlement, — a  conveyance,  by  a  husband  heavily  in- 
debted, of  all  his  property  for  the  benefit  of  his  wife,  which 
expresses  on  its  face  "free  of  all  debts  made  by  himself"; 
and  the  value  of  the  property  conveyed  is  far  in  excess  of  what 
i8  alleged,  but  not  proven,  to  be  due  to  the  wife.  Under 
the  repeated  early  and  late  decisions-  of  this  court,  the  settle- 
ment is  prima  facie  fraudulent  and  void  as  to  existing  creditors 
and  presumed  to  be  voluntary,  unless  those  claiming  under  it 


BEECUER  V.  WILSON.  I37 

can  show  that  it  was  made  for  a  valuable  consideration,  in 
good  faith,  and  upon  a  contract  or  agreement  coeval,  or  so 
nearly  coeval  with  the  appropriation  and  the  settlement  as 
to  support  the  prcsuni[)tion  of  fair  dealing,  and  repel  the  pre- 
sumption of  law  that  the  settlement  is  a  mere  resort  or  con- 
trivance for  putting  the  property  of  the  husband  beyond  the 
reach  of  his  creditors.  Blow  v.  Maynard,  2  Leigh,  30;  Fink 
V.  Denny,  75  Va.  663 ;  Hatcher  v.  Crews,  78  Va.  463 ;  Perry 
V.  Ruby,  81  Va.  317,  321 ;  and  Robbins  v.  Armstrong,  84  Va. 
810. 

The  record  shows  that  Beecher  purchased  the  Riverside  farm 
by  deed  April  17,  1879,  which  makes  no  allusion  to  or  recog- 
nition of  the  wife,  or  of  her  having  any  claim  or  separate 
estate;  that  he  took  the  title  in  his  own  name;  that  he  used 
it  as  his  own  exclusive  and  absolute  property ;  that  he  sold 
and  conveyed  parts  of  it,  and  twice  conveyed  the  whole  of  it 
by  deeds  of  trust  to  secure  his  debts  contracted  upon  the 
faith  of  it,  and  that  he  took  the  releases  to  himself;  that  he 
held  it  and  used  it,  and  obtained  credit  upon  it  as  his  own 
for  over  six  years,  without  ever  a  suggestion  of  his  wife's 
interest,  until  by  deed,  April  21,  1885,  (when  he  had  become 
heavily  indebted,)  he  settles  it,  and  all  his  other  property, 
upon  his  wife,  to  the  exclusion  of  his  creditors,  upon  the 
recital  in  the  said  deed  of  settlement — the  first  intimation — 
that  he  had  received  and  appropriated  money  belonging  to  his 
wife  at  various  times  previously, — part  in  1875,  and  part  in 
1883,  and  other  parts  at  different  times, — some  of  which  went 
to  Ijfie  support  of  the  family,  some  into  the  partnership  busi- 
ness, and  some  was  used  to  make  the  last  payments  of  tlie 
purchase  money  for  the  Riverside  farm,  and  for  improvements 
put  tliereon.  But  there  is  no  adequate  proof,  if  indeed,  there 
be  any  whatever,  of  a  contract  to  repay  these  moneys.  No 
such  contract  appears  anywhere,  in  the  deeds  touching  this 
land,  between  tlie  parties,  and  the  only  suggestion  in  the 
evidence  of  any  such  contract,  or  any  contract  at  all,  is  in 
the  deposition  of  the  trustee,  O.  Beecher,  Jr.,  "that  there  was 
no  understanding  at  the  time  they  were  made  directly  to  her, 
but  it  was  always  agreed  that  the  property  should  be  hers. 
This  was  the  understanding  at  the  time  of  the  purchase, 
though  nothing  was  said  about  it."  Proof  of  such  a  con- 
tract must  be  distinct,  full,  and  conclusive  to  support  the  set- 
tlement; and  there  is  not  even  a  claim  or  assertion  anywhere 
in  the  record  that  the  alleged  contract  or  agreement  was  in 
writing.  The  witness,  O.  Beecher,  Jr.,  trustee,  is  seriously 
impugned,  by  evidence  in  the  record,  for  want  of  veracity; 


138  TRANSACTIONS    BETWEEN    HUSBAND   AND    WIFE. 


but,  taking  his  incomprehensible  statement  above  quoted,  for 
true,  it  not  only  falls  far  short  of  proving  a  specific  agree- 
ment, at  the  time,  that  the  Riverside  farm  purchased  should 
be  the  property  of  the  wife,  but  it  can  not  be  construed  into  a 
binding  contract,  as  testified  to  by  this  witness,  in  regard  to 
land,  without  an  utter  disregard  of  tlie  policy  and  the  letter 
of  the  statute  of  frauds.  Blow  v.  Alaynard,  2  Leigh  (Va.),  30. 
By  the  evidence  of  appellants'  own  witnesses  and  tlieir  own 
pleadings,  ]\Irs.  Beecher  permitted  her  money  to  go  into  the 
hands  of  her  husband,  O.  Beecher,  and  be  used  in  his  busi- 
ness, and  be  mixed  with  his  property,  and  to  be  applied  to  the 
purchase  of  land  in  his  own  name,  and  to  be  held  and  used 
to  give  him  credit  and  advantage  in  his  business,  for  a  series 
of  years ;  and  by  so  doing  it  became  his  own  property,  and 
liable  for  his  debts.  Kesner  v.  Trigg,  98  U.  S.  50;  Humes 
V.  Scruggs,  94  U.  S.  2"].  Having  constantly  consented  that 
he  should  hold  himself  out  to  the  world  as  the  absolute  owner 
of  tliis  property,  and  to  contract  debts  on  the  credit  of  it 
up  to  the  very  hour  of  his  insolvency,  it  would  be  against 
the  plainest  principles  of  justice  and  good  conscience,  and 
utterly  subversive  of  fair  dealing,  to  permit  the  wife  to  step 
in  at  the  last  moment,  and  after  many  years,  with  an  unsup- 
ported and  mere  assertion  of  ownership  of  the  property  which 
she  had  permitted  him  to  hold  and  proclaim  as  his  absolute 
own  all  the  time,  and  obtain  and  enjoy  credit  and  business 
standing  thereby,  and  thus  to  defraud  the  just  debts  due  to 
his  honest  creditors.  When  the  trust  does  not  arise  upon  the 
face  of  the  deed,  but  is  raised  upon  the  subsequent  payments 
of  the  purchase  money  to  override  the  deed,  the  proof  must 
be  very  clear,  and  mere  parol  evidence  ought  to  be  received 
with  great  caution.  Bank  v.  Carrington,  7  Leigh  (Va.)  581. 
And  if  every  word,  as  testified  to  by  the  witnesses  for  the  appel- 
lants, be  true  as  to  the  sum  of  money  belonging  to  Mrs. 
Beecher  alleged  to  have  been  paid  by  her  husband  upon  the 
purchase  of  the  Riverside  farm,  this  would  not  support  a 
resulting  trust.  The  trust  must  be  coeval  with  the  deed,  or 
it  cannot  exist.  "A  resulting  trust  must  arise  at  the  time 
of  the  execution  of  the  conveyance.  A  subsequent  payment 
will  not,  by  relation,  attach  a  trust  to  the  original  purchaser." 
Miller  v.  Blose,  30  Grat.  (Va.)  744.  In  Bispham's  Principles 
of  Equity  it  is  said:  "It  is  essential  to  a  resulting  trust  that 
the  money  should  be  paid  at  the  time  of  the  purchase.  A 
subsequent  payment  cannot  raise  a  trust."  In  Biglow,  Fraud, 
109,  it  is  said:     "After  the  legal  title  has  been  conveyed  to 


BEECIIER  V.  WILSON.  139 

one  who  agreed  to  buy  for  another,  the  application  of  the  lat- 
ter's  money  to  pay  notes  for  the  purchase  money  creates  no 
resuhing  trust  in  favor  of  the  other.  The  trust  must  attach, 
if  ever,  at  the  time  of  the  conveyance,"  etc. 

The  simple  fact  that  the  husband  used  the  wife's  money, 
as  alleged,  is  not  a  sufficient  consideration  to  support  the  deed 
of  settlement,  in  the  absence  of  proof  that,  at  the  time  and 
times  the  various  sums  of  money  were  received  from  the  wife 
it  was  understood  to  be  loaned,  and  that  then  and  subsequently 
both  husband  and  wife  recognized  it  as  a  debt,  and  intended 
to  stand  to  each  other  in  the  relation  of  debtor  and  creditor. 
Bump,  Fraud,  Con  v.  304;  College  v.  Powell,  12  Grat.  (Va.) 
372;  Blow  V.  Maynard,  2  Leigh  (Va.)  30;  Campbell  v.  Bowles, 
30  Grat.  (Va.)  663.  There  is  no  pretense  of  such  proof  in 
this  record,  and  in  fact  it  appears  throughout  the  whole  mat- 
ter that  this  money  was  used  by  the  husband  by  common 
consent  as  his  own,  and  never  was  thought  of  as  a  debt  from 
him  to  his  wife  till  subsequent  events  made  it  necessary  to 
hide  his  property  from  his  creditors.  The  presumption  is 
that  when  a  wife's  money  comes  into  the  hands  of  her  husband, 
and  is  used  by  him  in  his  business  as  his  own,  and  to  purchase 
property  in  his  own  name,  and  hold  it  and  use  it,  and  trade 
with  the  property  so  bought  and  held,  in  his  own  name,  and 
contract  debts  upon  the  faith  and  credit  of  his  recorded 
legal  title,  it  is  his  own  property,  and  she  cannot,  after  years 
have  passed,  claim  it  as  her  own,  and  thus  enable  a  husband 
to  consumate  a  fraud  upon  his  creditors.  Humes  v.  Scruggs, 
94  U.  S.  22.  The  presumption  is  that  she  intended  to  give, 
and  not  to  loan,  the  money,  even  if  (as  in  this  case  there  is 
not)  there  be  any  proof  tliat  the  moneys  did  not  belong  to  the 
husband  by  his  marital  right,  and  that  she  held  any  separate 
estate.  2  Minor,  Inst.  192  ;  Miller  v.  Blose,  30  Grat.  (Va.)  744; 
Irvine  v.  Greever,  32  Grat.  (Va.)  411. 

The  married  woman's  act  secured  to  married  women  prop- 
erty "hereafter  acquired,"— that  is,  after  April  4,  1877;  and 
all  the  money  appropriated  by  the  husband  was  acquired  by 
the  wife  long  prior  to  April  4,  1877,— in  1863  and  1875.  And 
the  married  woman's  act  does  not  prevent  a  wife  from  giv- 
ing her  property  to  her  husband,  if  she  please;  nor  does  it 
abrogate  the  presumption  that,  under  circumstances  such  as 
obtained  in  this  case,  she  has  done  so.  Bain  v.  Buff,  76  Va. 
374. 

The  decree  complained  of  is  plainly  right,  and  we  are  of 
opinion  that  it  must  be  affirmed. 


i40        traxsactioxs  between  husband  and  wife. 
9.    Liability  to  Each  Other  in  Tort. 

BANDFIELD  v.  BANDFIELD. 

117  ]\Iich.  80,  75  N.  W.  287,  40  L.  R.  A.  757,  72  Am.  St.  550. 

(1898.) 

Action  by  Emma  S.  Bandfield  against  her  former  husband, 
Charles  A.  Handheld,  from  whom  she  had  obtained  a  divorce 
for  desertion,  to  recover  damages  for  the  communication  by 
him  to  her  during  coverture  of  a  loathsome  disease.  Demurrer 
to  declaration  sustained.     Affirmed. 

GRANT,  C.  J. :  The  sole  question  is  :  Can  a  wife  main- 
tain suit  against  her  husband  for  a  personal  tort,  committed 
upon  her  while  they  were  living  together  as  husband  and  wife  ? 
We  answered  this  question  in  the  negative  in  the  case  of 
Wagner  v.  Carpenter,  Circuit  Judge,  decided  November  17, 
1897.  In  that  case  the  husband  had  uttered  a  gross  libel 
against  his  wife.  She  brought  suit  by  capias  ad  responden- 
dum, and  the  proceedings  were  quashed  by  the  circuit  judge, 
for  the  reason  that  the  wife  could  not  maintain  the  suit  against 
her  husband.  The  wife  applied  to  this  court  for  the  writ 
of  mandamus  to  compel  the  circuit  judge  to  vacate  that  order. 
The  writ  was  denied,  and  the  order  of  the  circuit  judge  sus- 
tained. No  opinion  was  written.  But  the  sole  and  identical 
question  there  involved  is  the  same  as  is  involved  in  this 
suit.  The  briefs  there  filed  pursued  the  same  line  of  argument 
and  cited  the  same  authorities  as  are  now  cited.  Counsel 
cite  the  married  woman's  act  of  this  state  as  conferring  this 
right.  This  act  is  found  in  2  How.  Ann.  Stat.  §§  6295,  6297, 
which  read  as  follows:  "The  real  and  personal  estate  of 
every  female,  acquired  before  marriage,  and  all  property, 
real  and  personal,  to  which  she  may  afterwards  become  en- 
titled by  gift,  grant,  inheritance,  devise,  or  in  any  other  man- 
ner, shall  be  and  remain  the  estate  and  property  of  such  female. 
*  *  *  Actions  may  be  brought  by  and  against  a  married 
woman  in  relation  to  her  sole  property,  in  the  same  manner  as 
if  she  were  unmarried."  In  many  decisions  the  courts  of  many 
of  the  states,  notwithstanding  the  statutes  conferring  rights 
upon  a  married  woman  over  her  separate  property  not  con- 
ferred by  the  common  law,  have  thus  far,  without  exception, 
denied  the  right  of  a  wife  to  sue  her  husband  for  personal 
Avrongs  committed  during  coverture.  No  such  right  is  con- 
ferred by  our  statute  unless  it  be  by  implication.     The  legis- 


BANDFIELD  V.  BANDFIELD.  I41 

lature  should  speak  in  no  uncertain  manner  when  it  seeks  to 
abrogate  the  plain  and  long-established  rules  of  the  common 
law.  Courts  should  not  be  left  to  construction  to  sustain  such 
bold  innovations.  The  rule  is  thus  stated  in  9  Bac.  Abr., 
title  "Statute,"  I,  p.  245 :  "In  all  doubtful  matters,  and  when 
the  expression  is  in  general  terms,  statutes  are  to  receive  such 
a  construction  as  may  be  agreeable  to  the  rules  of  the  common 
law  in  cases  of  that  nature;  for  statutes  are  not  presumed 
to  make  any  alteration  of  the  common  law,  further  or  other- 
wise than  the  act  expressly  declares.  Therefore  in  all  general 
matters  the  law  presumes  the  act  did  not  intend  to  make 
any  alteration;  for,  if  the  parliament  had  that  design,  they 
should  have  expressed  it  in  the  act." 

The  result  of  plaintiff's  contention  would  be  another  step 
to  destroy  the  sacred  relation  of  man  and  wife,  and  to 
open  the  door  to  law-suits  between  them  for  every  real  and 
fancied  wrong, — suits  which  the  common  law  has  refused 
on  the  ground  of  public  policy.  This  court  has  gone  no  further 
than  to  support  the  wife,  under  the  married  woman's  act, 
in  protecting  her  in  the  management  and  control  of  her  prop- 
erty. It  has  sustained  her  right  to  an  action  for  assault  and 
battery,  for  slander,  and  for  alienation  of  her  husband's 
affections  against  others  than  her  husband.  Berger  v.  Jacobs, 
21  Llich.  215;  Leonard  v.  Pope,  27  Mich.  145;  Rice  v.  Rice, 
104  ]\Iich.  371,  62  N.  W.  833.  At  the  same  time,  it  has  held 
that  the  wife  could  not  enter  into  a  partnership  or  other  busi- 
ness with  her  husband,  and  thus  become  responsible  for  the 
contracts  and  debts  of  her  husband.  Artman  v.  Ferguson, 
73  j\Iich.  146,  40  N.  W.  907;  Edwards  v.  IMcEnhill,  51  Mich. 
160,  16  N.  W.  322.  Personal  wrongs  inflicted  upon  her  give 
her  the  right  to  a  decree  of  separation  or  divorce  from  her 
husband,  and  our  statutes  have  given  the  court  of  chancery 
exclusive  jurisdiction  over  that  subject.  This  court,  clothed 
with  the  broad  powers  of  equity,  can  do  justice  to  her  for 
the  wrongs  of  her  husband,  so  far  as  courts  can  do  justice, 
and,  in  providing  for  her,  will  give  her  such  amount  of  her 
husband's  property  as  the  circumstances  of  both  will  justify, 
and,  in  so  doing,  may  take  into  account  the  cruel  and  out- 
rageous conduct  inflicted  upon  her  by  him,  and  its  eft'ect 
upon  her  health  and  ability  to  labor.  2  Am.  &  Eng.  Enc. 
Law  (2d  ed.)  120;  2  How  Ann.  Stat.  §  6245.  In  the  absence 
of  an  express  statute,  there  is  no  right  to  maintain  an  action 
at  law  for  such  wrong.  We  are  cited  to  no  authority  holding 
the  contrary.  We  cite  a  few  sustaining  the  rule:  Abbott  v. 
Abbott,  67  Maine  304;  Freethy  v.  Freethy,  42  Barb.  (X.  Y.), 


142  wife's  contracts  for  necessaries,  etc. 

641 ;  Peters  v.  Peters,  42  Iowa,  182 ;  Schultz  v.  Schultz,  89 
N.  Y.  644;  Cooley,  Torts  (2d  ed.),  p.  268;  Schduler,  Dom. 
Rel.  §  252;  Newell,  Defam.  p.  366;  Townsh.  Sland.  &  L.  (3d 

ed.),  p.  548. 

Judgment  affirmed. 


WIFE'S  CONTRACTS  FOR  NECESSARIES,  ETC. 

I.    Where  Husband  and  Wife  are  Living  Together. 

MONTAGUE  v.  BENEDICT. 

3  Barn.  &  C.  631,  10  E.  C.  L.  205.   (1825.) 

Assumpsit  for  jewelry  sold  by  plaintiff  to  defendant's  wife. 
The  defendant  was  a  special  pleader  in  considerable  practice. 
The  jewelry  sold  amounted  in  price  to  83  £,  of  which  plaintiff 
had  received  from  the  wife  34  £  on  account.  The  jury  found 
for  the  plaintiff  to  the  amount  of  his  bill.  A  rule  nisi  was 
obtained  for  a  nonsuit  on  the  ground  that  there  was  no  evi- 
dence to  be  left  to  the  jury  of  the  husband's  assent  to  the 
purchase.  Four  judges  delivered  concurring  opinions.  Rule  for 
nonsuit  made  absolute. 

BAYLEY,  J. :  It  seems  to  me,  that  in  this  case  there  was 
no  evidence  to  go  to  a  jury  to  entitle  the  plaintiff  to  a  verdict. 
I  take  the  rule  of  law  to  be  this:  if  a  man,  without  any  justifi- 
able cause,  turns  away  his  wife,  he  is  bound  by  any  contract 
she  may  make,  for  necessaries  suitable  to  her  degree  and 
estate.  If  the  husband  and  wife  live  together,  and  the  hus- 
band will  not  supply  her  with  necessaries,  or  the  means  of 
obtaining  them,  then,  although  she  has  her  remedy  in  the 
Ecclesiastical  Court,  yet  she  is  still  at  liberty  to  pledge  the 
credit  of  her  husband  for  what  is  strictly  necessary  for  her 
own  support.  But  whenever  the  husband  and  wife  are  liv- 
ing together,  and  he  provides  her  with  necessaries,  tlie  hus- 
band IS  not  bound  by  contracts  of  the  wife,  except  where 
there  is  reasonable  evidence  to  show,  that  the  wife  has  made 
the  contract  with  his  assent,  Etherington  v.  Parrott,  Ld.  Raym. 
1006.  Cohabitation  is  presumptive  evidence  of  the  assent  of 
tlie  husband,  but  it  may  be  rebutted  by  contrary  evidence; 


WANAMAKER  V.  WEANTR.  I43 

and  when  such  assent  is  proved,  the  wife  is  the  agent  of  the 
husband  duly  authorized.  Then  the  question  is,  was  there 
any  evidence  in  this  case  to  warrant  my  Lord  Chief  Justice 
in  submitting,  as  a  question  for  the  consideration  of  the  jury, 
whether  the  wife  had  the  authority  of  the  husband  to  make 
this  purchase?  It  appears,  that  the  wife  had  originally  a 
fortune  under  4000  £  ;  tliat  would  yield  an  income  less  than 
200  £  per  annum.  There  was  no  evidence  on  the  part  of  the 
plaintiff  to  show  that  she  had  a  fortune  even  to  that  extent; 
that  fact  afterwards  appeared  upon  the  defendant's  evidence. 
Then  is  it  to  be  presumed,  that  a  husband  working  hard  for 
the  maintenance  of  himself  and  family,  keeping  no  man- 
servant, and  living  in  a  house  badly  furnished,  would  authorize 
his  wife  to  lay  out  in  the  course  of  six  weeks,  half  of  her 
yearly  income  in  trinkets?  If  the  tradesman  in  this  case  had 
exercised  a  sound  judgment,  he  must  have  perceived  that  this 
money  would  have  been  much  better  laid  out  in  furniture  for 
the  house,  than  in  decking  the  plaintiff's  wife  with  usdess 
ornaments,  which  would  so  ill  correspond  with  the  furniture 
in  the  house.  I  think,  at  all  events,  there  was  gross  negligence 
on  the  part  of  the  plaintiff,  if  he  ever  intended  to  make  the 
husband  responsible.  If  a  tradesman  is  about  to  trust  a  mar- 
ried woman  for  what  are  not  necessaries,  and  to  an  extent 
beyond  what  her  station  in  life  requires,  he  ought,  in  common 
prudence,  to  inquire  of  the  husband  if  she  has  his  consent 
for  the  order  she  is  giving;  and  if  he  had  so  inquired  in  this 
case,  it  is  not  improbable  that  the  husband  might  have  told 
him  not  to  trust  her.  But  no  such  inquiry  was  made ;  on  the 
contrary,  the  plaintiff  always  inquired  for  the  wife,  and  that 
is  strong  evidence  to  show  that  she  was  the  person  trusted, 
and  not  the  husband.  On  the  whole,  I  think  that  the  plaintiff 
did  not  make  out,  by  reasonable  evidence,  that  the  wife  had 
any  authority  to  make  the  purchase  in  question..  Rule  abso- 
lute for  a  nonsuit. 


WANAMAKER  v.  WEAVER. 

176  N.  Y.  75,  68  N.  E.  135,  65  L.  R.  A.  529,  98  Am.  St.  621. 

(1903-) 

Action  by  John  Wanamaker  against  Simon  G.  Weaver  to 
recover  for  goods  sold  to  defendant's  wife.  Verdict  for  de- 
fendant.    Judgment  on  verdict  iffirmed. 


144  WIFE  S  CONTRACTS  FOR  NECESSARIES,  ETC. 

HAIGHT,  J. :  This  action  was  brought  to  recover  the  pur- 
chase price  of  goods  sold  by  the  plaintiff  to  the  defendant's 
wife,  in  the  city  of  Philadelphia,  without  the  defendant's 
knowledge  or  consent.  The  defendant  and  his  wife  resided 
in  tlie  city  of  Rochester,  and  at  the  time  the  goods  were  pur- 
chased lived  together  as  husband  and  wife.  It  was  claimed 
on  behalf  of  the  defendant  that,  while  tlie  goods  might  ordi- 
narily be  deemed  necessaries,  they  were  not  in  fact  such, 
for  tlie  reason  that  the  defendant  lived  on  a  salary  of  $2,000 
per  year,  out  of  which  he  delivered  to  his  wife  $1,500  in 
monthly  installments  of  $125  with  which  to  supply  his  table 
and  purchase  her  necessary  wearing  apparel ;  and  at  the  time 
she  purchased  the  goods  in  Philadelphia  she  was  amply  sup- 
plied with  prticles  of  a  similar  character,  and  was  not  in 
need  of  tlie  articles  purchased.  Upon  the  trial  the  defendant 
sought  to  show  the  character  and  the  amount  of  clothing 
possessed  by  the  defendant's  wife  at  the  time  she  made  the 
purchase  of  the  plaintiff  in  Philadelphia.  This  was  objected 
to.  The  objection  was  overruled,  and  an  exception  was  taken. 
The  court,  in  discussing  the  question,  stated  the  law  to  be  as 
follows :  "That  if  a  married  woman  goes  to  a  merchant,  and 
within  reasonable  limitations  buys  articles  suitable  for  the 
family  use  and  for  her  own  wardrobe,  the  presumption  is, 
in  the  absence  of  evidence  to  the  contrary,  that  the  husband 
is  liable.  But  if  it  appears  affirmatively  that  the  lady  was 
abundantly  supplied  with  similer  articles,  purchased  elsewhere, 
and  that  there  was  not,  in  fact,  any  reasonable  necessity  for 
such  expenditure,  the  husband  can  not  be  held  responsible, 
unless  there  is  some  affirmative  proof  of  actual  authority 
outside  of  the  authority  the  law  infers  from  their  marital 
relations."  This  view  was  substantially  repeated  by  the  trial 
judge  in  his  charge  to  the  jury,  and  an  exception  was  taken 
thereto.  The  trial  court  also  submitted  to  the  jury  the  ques- 
tion as  to  whether  the  plaintiff  gave  credit  to  the  defendant 
or  to  his  wife.    The  verdict  was  in  favor  of  the  defendant. 

The  only  question  which  we  deem  it  necessary  to  consider 
is  that  raised  by  the  exception  to  the  charge  as  made  submit- 
ting to  the  jury  the  question  as  to  whether  the  defendant's 
wife  was  abundantly  supplied  with  similar  articles  to  those 
purchased  at  the  time  of  the  purchase,  and  therefore  the 
articles  were  not  necessary  for  her  support  and  maintenance. 
The  majority  of  the  judges  of  the  Appellate  Division  appear 
to  have  entertained  the  view  that  if  the  articles  purchased 
by  the  wife  were  of  the  character  ordinarily  deemed  neces- 
saries, such  as  clothing,  table  linen,  towels,  and  napkins,  the 


WANAMAKER  V.  WEAVER.  145 

merchant  was  at  liberty  to  furnish  her  therewith,  and  charge 
her  husband  therefor,  without  regard  to  the  amount  purchased 
or  the  necessity  therefor.  In  commenting  upon  the  charge 
of  the  trial  court,  they  say  in  their  opinion:  "We  have, 
therefore,  this  principle  enunciated:  That  if  a  wife,  living 
with  her  husband,  seeks  to  purchase  goods  of  a  merchant, 
the  latter  must  make  inquisitorial  examination,  and  ascertain 
whether  the  family  possesses  an  adequate  supply  of  the  arti- 
cles which  the  wife  desires  to  purchase." 

It  will  readily  be  observed  that  while  the  amount  involved 
in  this  case  is  trivial,  the  principle  is  of  considerable  import- 
ance. While  the  question  seems  to  have  been  considered  in 
the  lower  courts,  it  does  not  appear  to  have  been  squarely 
decided  in  this  court.  In  the  case  of  Keller  v.  Phillips,  39 
N.  Y.  351,  the  husband  had  given  the  merchant  notice  not  to 
give  the  wife  further  credit,  and  in  the  case  of  Hatch  v. 
Leonard,  165  N.  Y.  435,  59  N.  E.  270,  the  husband  and  wife 
lived  separate  and  apart;  so  that  neither  of  these  cases  afford 
us  much  help  in  determining  the  question  presented  in  this 

case. 

In  the  case  of  Cromwell  v.  Benjamin,  41  Barb.  (N.  Y.)  558, 
the  General  Term  sustained  the  right  of  a  merchant  to  recover 
of  the  defendant  for  the  necessaries  furnished  to  his  wife. 
J.  C.  Smith,  J.,  in  delivering  the  opinion,  states  the  law,  as 
he  understood  it,  as  follows :  "But  the  husband  may  be  liable 
for  necessaries  furnished  to  the  wife  in  certain  cases,  though 
the  existence  of  an  agency  or  assent,  express  or  implied  in 
fact,  is  wholly  disproved  by  the  evidence;  and  this  upon  tlie 
ground  of  an  agency  implied  in  law,  though  there  can  be 
none  presumed  in  fact.  It  is  a  settled  principle  in  the  law 
of  husband  and  wife  that  by  virtue  of  the  marital  relation, 
and  in  consequence  of  the  obligations  assumed  by  him  upon 
marriage,  the  husband  is  legally  bound  for  the  supply  of  neces- 
saries to  the  wife  so  long  as  she  does  not  violate  her  duty 
as  wife;  that  is  to  say,  so  long  as  she  is  not  guilty  of  adultery 
or  elopement.  The  husband  may  discharge  this  obligation 
by  supplying  her  with  necessaries  himself  or  by  his  agents, 
or  giving  her  an  adequate  allowance  in  money,  and  then  he 
is  not  liable  to  a  tradesman  who,  widiout  his  authority,  fur- 
nishes her  with  necessaries." 

In  Bloomingdale  v.  Brinkerhoff,  2  IMisc.  (N.Y.)  49,  20  N. 
Y.  S.  858,  it  was  held  that,  in  order  to  entitle  the  trades- 
man to  recover  from  tlie  husband,  it  was  incumbent  upon 
him  to  show  that  "the  articles  supplied  to  the  wife  were  not 
10 — Cases  Dom.  Rel. 


146  wife's  contracts  for  necessaries,  etc. 

only  of  the  kind  usually  denominated  necessaries,  because 
their  need  is  common  to  all  persons,  but  that,  in  consequence 
of  the  inadequacy  of  the  husband's  provision,  they  were  actual- 
ly required  for  the  wife's  proper  support,  commensurate  with 
his  means,  her  wonted  living  as  his  spouse,  and  her  station  in 
the  community." 

There  are  numerous  other  cases  reported  in  this  and  other 
states  bearing  upon  the  liability  of  tlie  husband  for  neces- 
saries, but  attention  has  been  called  to  those  most  nearly  in 
point  upon  the  question  involved  in  this  case.  There  are, 
however,  some  cases  in  England  where  tlie  question  appears 
to  have  been  more  thoroughly  considered  in  tlie  higher  courts. 
[The  court  here  reviews  tlie  cases  of  Debenham  v.  ]\Iellon,  5 
Q.  B.  Div.  394;  6  Appeal  Cases  24,  and  Morel  Brothers  v. 
Earl  of  Westmoreland,  i  K.  B.  (1903)  64,  and,  after  citing 
other  authorities,  continues]. 

The  discussion  of  the  English  cases,  to  which  attention 
has  been  called,  covers  the  points  involved  in  this  case.  They, 
in  effect,  hold,  in  accordance  with  the  charge  made  by  the 
judge  in  this  case,  that  the  husband,  in  defense,  may  show 
that  the  wife  was  amply  supplied  with  articles  of  the  same 
character  as  those  purchased,  or  that  she  had  been  furnished 
with  ready  money  with  which  to  pay  cash  therefor;  that  the 
question  of  her  agency  is  one  of  fact,  and  is  not  a  conclusion 
of  law  to  be  drawn  alone  from  the  marital  relation.  The 
conclusions  reached  in  these  cases  are  in  accord  with  the  rule 
as  stated  by  Schouler  and  some  of  the  decisions  alluded  to 
in  this  state,  and  we  incline  to  the  view  that  the  rule  recognized 
by  them  is  the  safer  and  better  rule  to  follow.  It  com.pels 
the  husband  to  pay  in  a  proper  case,  and  at  tlie  same  time 
affords  him  some  financial  protection  against  the  seductive 
wiles  exerted  by  tradesmen  to  induce  extravagant  wives  to 
purchase  that  which  they  really  do  not  need. 

We  do  not  participate  in  the  alarm  which  appears  to  have 
possessed  the  learned  justices  of  the  Appellate  Division  on 
account  of  the  possible  inquisitorial  examination  to  which  the 
wives  may  be  subjected.  The  anxiety  of  tradesmen  to  sell 
will  be  sufficient  to  protect  them  from  any  improper  "inquisi- 
torial examination."  If  a  wife  is  going  to  a  merchant  to  trade, 
with  whom  she  is  acquainted,  and  with  whom  she  has  been 
accustomed  to  trade  upon  the  credit  of  her  husband,  she  may 
still  continue  to  do  so  until  the  husband  gives  notice  prohibit- 
ing the  merchant  from  longer  giving  credit  to  her.  But  when 
she  goes  to  a  stranger,  with  whom  she  has  never  traded  before, 
and  where,  consequently,  there  is  no  implied  authority  on  the 


SIBLEY  V.  GILMER.  I47 

part  of  the  husband  to  give  her  credit,  and  seeks  to  purchase 
upon  her  husband's  credit,  it  is  but  reasonable  and  proper 
that  she  disclose  to  the  merchant  her  authority  therefor,  or 
for  the  merchant  to  request  such  disclosure. 

We  have  discovered  no  errors  in  the  rulings  of  the  trial 
court.  The  judgment  of  the  Appellate  Division  should,  there- 
fore, be  reversed,  and  that  entered  upon  the  verdict  affirmed, 
witli  costs. 

2.    Where  Husband  and  Wife  Are  Living  Apart. 

SIBLEY  V.  GILMER. 

124  N.  Car,  631,  32  S.  E.  964.     (1899.) 

Action  against  a  husband  for  goods  sold  to  his  wife.  Judg- 
ment for  defendant.     Reversed. 

MONTGOMERY,  J. :  The  only  question  presented  in  this 
case  is:  Is  the  husband  lialjle  for  the  price  of  goods  (ladies' 
apparel)  not  necessaries,  sold  to  his  wife,  after  separation,  by 
one  who  had,  previous  to  the  separation,  sold  to  her,  on  credit, 
at  various  times,  goods  which  were  afterwards  paid  for  by 
the  husband ;  the  seller  having  been  ignorant  of  the  separation 
at  the  time  of  the  last  sale?  What  constitutes  "necessaries," 
and  what  are  the  nature  and  extent  of  the  husband's  liability 
for  "necessaries"  furnished  to  his  wife,  either  while  they  are 
living  together  or  living  apart,  though  discussed  at  length 
on  the  argument  here,  are  not  matters  necessary  to  be  con- 
sidered by  the  court.  In  the  case  on  appeal  it  appears  that 
the  plaintiffs  on  the  trial  below  abandoned  the  count  for 
necessaries,  and  relied  upon  the  agency  of  the  wife.  His 
honor  instructed  the  jury  that,  if  they  believed  the  evidence, 
to  answer  the  issue,  "Is  the  defendant  indebted  to  the  plain- 
tiffs, and,  if  so,  in  what  sum?"     "Nothing." 

The  defendant's  wife  had,  before  their  separation,  bought 
goods  from  the  plaintiffs  in  New  York  City,  and  they  had  sent 
out  monthly  statements  of  account  therefor  to  the  defendant 
at  his  home  in  Greensboro,  N.  Car.  He  never  made  objection 
to  the  course  of  his  wife,  and  the  husband  paid  some  of  the 
bills  by  his  personal  checks.  After  the  separation,  the  plain- 
tiffs sold  other  goods  to  the  defendant's  wife,  the  price  of 
which  this  action  was  brought  to  recover,  the  plaintiffs  hav- 
ing no  notice  of  the  separation,  although  it  was  known  gen- 
erally in  North  Carolina,  and  at  Greensboro,  where  the  de- 
fendant resided. 


148  wife's  contracts  for  necessaries,  etc. 

A  husband  can  make  his  wife  his  agent,  and  he  will  be 
bound  for  her  acts  by  tlie  same  rules  of  law  as  would  preail 
in  the  case  of  any  other  agency,  and  the  agency  may  be  ex- 
press or  implied,  as  in  other  cases.  Schouler,  Dom.  Rel.  §  ^2 ; 
Story,  Kg.  §  7 ;  IMechem,  Ag.  §  62 ;  Webster  v.  Laws,  89  N.  Car. 
224.  That  being  the  true  statement  of  the  law,  we  are  of  the 
opinion  that  upon  the  facts  in  this  case  the  instruction  of  his 
honor  was  erroneous.  The  matter  is  one  entirely^  of  agency 
in  general,  and  the  agency  growing  out  of  the  relation  of  hus- 
band and  wife  by  operation  of  law  is  not  the  question  involved. 

The  defendant,  by  his  course  of  acquiescence  in  the  dealings 
bet\veen  tlie  plaintiffs  and  his  wife,  and  by  his  payment  of 
the  accounts,  held  his  wife  out  to  the  plaintiffs  as  empowered 
and  authorized  by  him  to  make  purchases  of  goods  from 
them,  and  such  an  agency  by  implication  is  as  binding  as  if 
he  had  expressly  authorized  her  to  buy  the  goods  on  his 
account.  The  implied  agency  having  thus  been  established, 
the  plaintiffs  had  a  right  to  presume  that  the  authority  would 
be  continued  until  they  had  reason  to  know  that  it  had  been 
discontinued.  Cowell  v.  Phillips  (R.  I.),  20  Atl.  933;  Story, 
Ag.  §  470;  I  Am.  &  Eng.  Enc.  Law,  p.  1230,  and  cases  there 
cited. 

The  main  contentions  of  tlie  defendant  were:  First,  that 
the  purchase  of  the  goods  on  credit  was  the  contract  of  the 
wife  herself,  and  tlierefore  void,  and,  as  a  corollary,  tliat  the 
defendant  husband  could  not  ratify  a  contract  void  and  against 
public  policy;  second,  that  the  wife's  implied  authority  from 
the  husband  to  purchase  the  goods  from  the  plaintiff's,  if  it 
ever  existed,  was  revoked  by  the  separation,  by  force  of  law, 
as  in  case  of  the  death  of  a  principal ;  and,  third,  that  if  there 
ever  existed  an  implied  agency  between  the  defendant  and 
his  wife,  the  plaintiffs  had  notice  of  its  revocation  by  reason 
of  the  fact  that  the  separation  was  generally  known  in  Greens- 
boro, where  the  defendant  resided. 

We  think  that,  although  the  goods  were  charged  on  the 
books  of  the  plaintiff's  to  the  wife,  the  whole  transaction 
showed  that  the  credit  was  extended  to  tlie  defendant;  and 
the  manner  in  which  they  were  charged  could  not  affect 
his  liability,  especially  as  monthly  statements  of  the  account 
were  sent  to  the  defendant,  some  of  which  he  paid  by  his 
personal  checks,  without  even  a  word  of  objection  or  pro- 
test to  the  purchases  by  his  wife.  In  support  of  the  second 
mentioned  contention  of  the  defendant  his  counsel  cited  the 
case  of  Pool  v.  Everton,  50  N.  Car.  241.     In  that  case  the 


SIBLEY  V.  GILMER.  I49 

husband  and  the  wife  were  hving  apart,  and  the  plaintifT,  a 
physician,  attended  her  in  a  case  of  sickness.  A  pubhc  notice 
by  advertisement  had  been  given  by  the  husband  of  the  separa- 
tion, and  that  he  would  not  be  hable  for  her  debts,  and  the 
plaintiff  was  aware  of  such  notice  having  been  given  at  the 
time  he  rendered  the  service.  The  court  held  there  that  the 
plaintiff  could  not  recover  on  the  ground  that  he  had  not 
shown  that  the  wife  had  good  cause  of  separation.  The  ques- 
tion there  was  not  one  of  general  agency,  but  one  of  operation 
of  law  ;  i.  e.  the  liability  of  tlie  husband  for  necessaries,  the  hus- 
band and  the  wife  living  apart.  The  court  said,  among  other 
things,  that  a  married  woman  could  make  a  contract  for  her 
husband  that  would  bind  him,  and  that  the  agency  might  be 
constituted  either  by  express  authority  or  by  implication. 
The  defendant's  reliance  is  upon  the  following  language  used 
by  the  court  in  tliat  case:  "But  this  implication  of  agency 
can  only  be  made  while  the  parties  continue  to  live  together. 
If  they  separate,  and  live  apart,  the  idea  of  an  implied  agency 
is  out  of  the  question.  The  effect  of  the  notice  [such  as  was 
given  in  this  case]  is  merely  to  inform  the  public  of  tlie  fact 
of  the  separation,  which  operates  as  a  revocation  of  any 
implied  agency  that  existed  while  they  lived  together." 

The  language  of  the  eminent  judge  who  wrote  the  opinion 
in  that  case  may  not  convey  as  clear  a  meaning  as  usually 
characterized  his  opinions,  but  we  think  the  reasonable  con- 
struction of  his  words  must  be  that,  in  cases  where  husband 
and  wife  had  separated,  no  notice  of  separation  need  be  given 
to  prevent  his  liability  for  debts  contracted  by  the  wife  dur- 
ing the  separation, — even  for  necessaries ;  the  law  being  that, 
if  the  separation  was  without  good  cause  on  the  part  of  the 
wife,  her  debt  contracted,  even  for  necessaries,  was  not  only 
not  binding  on  the  husband,  but  such  creditors  made  them- 
selves liable  to  the  husband  in  an  action  for  damages  for  ex- 
tending such  credit.  And  we  think  tliat,  while  there  may  be 
some  confusion  about  the  language  in  the  last  sentence  of 
the  extract  from  that  opinion,  the  meaning  was  tliat  the  notice 
given  in  that  case  could  only  affect  such  creditors  as  had 
been,  before  the  separation,  dealing  with  the  wife  as  agent 
by  implication  of  the  husband  in  respect  to  matters  not  strict- 
ly to  be  classed  as  necessaries  for  tlie  support  of  the  family. 
We  think  the  court  had  in  mind  just  such  agencies  as  the  one 
we  are  treating  in  this  case  as  the  ones  to  be  affected  by  the 
notice.  There  was  error  in  the  instruction  given  by  his  honor 
and  there  must  be  a  new  trial. 

Douglas,  J.,  dissents. 


150  wife's  contracts  for  necessaries,  etc. 

CUNNINGHAM  v.  REARDON. 
98  Mass.  538,  96  Am.  Dec.  670.    (1868.) 


Action  to  recover  for  board  and  lodging  furnished  by  plain- 
tiff to  defendant's  wife,  and  for  money  paid  by  him  for  her 
funeral  expenses.  The  defendant's  wife,  who  was  ill  with 
consumption,  was  forced  by  his  cruelty  to  leave  him.  There- 
upon the  plaintiff  supplied  her  with  board  and  lodging  from 
June,  1864,  until  her  death  in  September,  1864.  The  husband 
was  able  to  provide  for  her,  but  after  she  left  him,  he  never 
visited  her  nor  solicited  her  to  return.  Plaintiff  provided 
and  paid  for  a  suitable  burial  of  the  wife  at  reasonable  ex- 
pense, but  without  notifying  the  husband  of  her  death.  The 
defendant  admitted  his  liability  for  the  board  and  lodging,  but 
denied  that  there  was  any  promise  implied  by  law  that  he 
should  reimburse  the  plaintiff  for  the  voluntary  payment  for 
funeral  expenses.  Judgment  for  plaintiff  for  the  full  amount 
claimed. 

HOAR,  J.:  The  husband  who  by  his  cruelty  compels  his 
wife  to  leave  him  is  considered  by  the  law  as  giving  her  there- 
by a  credit  to  procure  necessaries  on  his  account;  and  is  res- 
ponsible to  any  person  who  may  furnish  her  with  them.  This 
responsibility  extends  not  only  to  supplies  furnished  her 
while  living,  but  to  decent  burial  when  dead.  Its  origin  is  not 
merely  and  strictly  from  the  law  making  her  his  agent  to 
procure  the  articles  of  which  she  stands  in  need.  If  it  were 
so,  the  consequence  would  follow  for  which  the  defendant 
contends,  that  the  agency  would  end  with  the  life  of  the  agent. 
But  it  is  rather  an  authority  to  do  for  him  what  law  and 
duty  require  him  to  do,  and  which  he  neglects  or  refuses  to 
do  for  himself;  and  is  applicable  as  well  to  supplies  furnished 
to  the  wife  when  she  is  sick,  insensible  or  insane,  and  to  the 
care  of  her  lifeless  remains,  as  to  contracts  expressly  made  by 
her. 

Nor  is  any  notice  to  him  requisite,  in  order  to  charge  him 
for  her  funeral  expenses,  any  more  than  for  necessaries  to 
sustain  life.  The  burden  is  on  the  plaintiff  in  either  case  to 
prove  the  existence  of  the  necessity,  and  that  the  husband  has 
failed  to  make  provision  for  it.  But  when  this  is  established, 
nothing  more  is  needed  to  create  the  liability;  and  it  would 


KIRK  V.  ClIIXSTRAXD.  15! 

seem  to  be  an  idle  ceremony  to  give  notice  of  his  wife's  death 
to  a  man  who  had  refused  her  the  means  of  sustaining  Ufe. 
The  responsibiHty  for  funeral  expenses  is  not  a  new  and  dis- 
tinct cause  of  action,  differing  in  kind,  or  in  the  rules  by  which 
it  is  created;  but  an  incident  to  the  obligation  to  furnish 
bodily  support.  Judginent  for  tlie  plaintiff  for  the  full  amount 
claimed. 


KIRK  V.  CHINSTRAND. 
85  Minn.  io8,  88  N.  W.  422,  56  L.  R.  A.  333.     (1901.) 

Action  by  Sophia  Kirk  against  James  Chinstrand  to  re- 
cover for  necessaries  furnished  defendant's  wife.  Judgment 
for  plaintiff.     Affirmed. 

BROWN,  J.:  This  w^as  an  action  to  recover  for  neces- 
saries furnished  by  plaintiff  to  and  for  the  wife  of  defendant. 
Plaintiff  had  judgment  in  the  court  below,  and  defendant 
appealed.  The  cause  was  tried  in  the  court  below  without  a 
jury,  and  the  facts  were  found  substantially  as  follows:  De- 
fendant and  Llary  Chinstrand  are  husband  and  wife,  and  have 
been  such  for  the  past  25  years.  Some  time  in  March,  1898, 
the  wife,  who  was  tlien  residing  with  defendant,  left  his  resi- 
dence for  some  cause  not  disclosed,  and  went  to  the  state  of 
Iowa,  returning  therefrom  in  tlie  latter  part  of  the  same 
year ;  but  the  parties  have  never  since  that  time  lived  together 
as  husband  and  wife.  After  her  return  from  Iowa  she 
boarded  for  a  time  at  the  same  house  widi  her  husband,  but 
since  April  i,  1899,  they  have  lived  wholly  separate  and  apart 
from  each  other. 

On  April  ist  defendant  procured  a  boarding  place  for  him- 
self, but  refused  to  permit  his  wife  to  accompany  him,  and  has 
since  made  no  pecuniary  allowance  or  provision  for  her  sup- 
port, other  than  engaging  with  one  Stilly  to  board  and  pro- 
vide her  with  a  room  at  his  home.  The  place  so  provided  was 
a  suitable  and  proper  place  for  the  wife,  but  for  some  reason 
not  disclosed  (the  wife  was  not  permitted  to  testify  on  the 
trial)  she  declined  to  accept  it,  and  made  independent  arrange- 
ments wath  plaintiff  for  her  support.  Defendant  informed 
plaintiff  after  his  wife  had  taken  up  her  abode  with  her  that 
he  w^ould  not  be  responsible  for  or  pay  any  indebtedness  in- 


152  WIFE  S  CONTRACTS  FOR  NECESSARIES,  ETC. 

curred  by  the  wife.  The  court  found,  as  conclusions  of  law,  that 
it  was  tlie  duty  of  tlie  husband  to  support  the  wife,  and  that  it 
was  immaterial  that  she  did  not  accept  his  offer  to  support 
her  at  the  home  of  Stilly. 

A  large  number  of  assignments  of  error  are  presented, 
but  we  fail  to  discover  reversible  error  in  any  of  them.  Some 
of  them  refer  to  the  refusal  of  the  trial  court  to  make  addi- 
tional findings  of  fact;  but  the  additional  findings,  if  made, 
would  not  change  the  legal  relations  or  affect  the  liability  of 
defendant,  and  were  properly  refused.  It  is  claimed  that  at 
the  time  the  wife  left  for  the  state  of  Iowa  she  took  with  her 
certain  personal  property  belonging  to  her  husband.  The  court 
sustained  an  objection  to  an  admission  of  testimony  of  this 
character,  and  the  ruling  is  assigned  as  error.  We  are  unable 
to  understand  why  this  fact,  if  it  be  conceded  to  be  a  fact, 
is  in  any  way  material. 

It  was  defendant's  duty  to  provide  for  the  support  and  main- 
tenance of  his  wife  and  the  mere  fact  that  he  had  some  trouble 
or  difficulty  with  her  which  resulted  in  their  separation  in 
no  way  relieved  him  from  that  responsibility.  The  court 
expressly  found  that  the  defendant  refused  to  permit  his 
wife  to  live  with  him.  It  was  wholly  immaterial,  in  view  of 
that  finding,  which  is  sustained  by  the  evidence,  whether  she 
offered  to  live  with  him  after  returning  from  Iowa  or  not. 
Even  if  it  be  conceded  that  the  wife  voluntarily  abandoned 
and  deserted  the  husband, — she  having  returned  to  him,  and  he 
having  refused  to  receive  her, — tlie  liability  to  support  her  was 
revived,  if  it  was  suspended  during  the  period  of  desertion; 
and,  if  he  refuses  to  furnish  her  a  home  with  himself,  she  may 
secure  necessaries  of  life  elsewhere,  and  he  is  liable,  under  the 
law,  therefor. 

The  wife  is  not  required,  where  the  husband  refuses  to 
permit  her  to  live  with  him,  to  submit  to  his  dictates  as  to 
where  she  shall  live.  She  may  go  where  she  pleases,  so  long 
as  the  place  selected  by  her  is  respectable,  and  the  expense 
thereof  does  not  exceed  proper  limits,  taking  into  considera- 
tion the  financial  circumstances  of  the  husband.  The  rule 
in  such  cases  is  that  the  husband,  by  refusing  to  permit  the 
wife  to  live  with  him  and  turning  her  away,  sends  credit  with 
her  to  the  extent  of  her  necessaries.  Bevier  v.  Galloway,  71 
111.519. 

We  have  examined  the  record  with  care,  and  all  the  assign- 
ments of  error  made  by  appellant,  and  conclude  that  the  re- 
sult reached  by  the  trial  court  was  in  harmony  with  the  law, 
and  the  judgment  appealed  from  is  affirmed. 


VUSLER  V.  COX.  153 

VUSLER  V.  COX. 

53  N.  J.  L.  516,  22  Atl.  347.    (1891.) 

Suit  by  Dr.  Henry  M.  Cox  against  the  executors  of  George 
Vusler,  deceased,  to  recover  for  professional  services  ren- 
dered decedent's  wife.  At  the  time  the  services  were  rendered 
the  wife  was  not  living  with  decedent,  having  left  him  without 
legal  excuse.  Judgment  for  plaintiff.  Reversed. 

DEPUE,  J.  (after  stating  the  facts)  :  It  may  be  inferred 
from  the  case  certified,  and  will  be  assumed  that  the  plaintiff 
rendered  these  services  to  the  testator's  wife  without  knowl- 
edge that  she  was  living  in  a  state  of  separation  from  her  hus- 
band. The  liability  of  a  husband  on  a  contract  made  by  the 
wife  is  usually  ascribed  to  those  principles  which  are  applica- 
ble to  the  relation  of  principal  and  agent. 

Where  husband  and  wife  are  living  together,  the  wife  has 
implied  authority  to  pledge  her  husband's  credit  for  such  things 
as  fall  within  the  domestic  department  ordinarily  confided  to 
her  management,  and  for  articles  furnished  to  her  for  her  per- 
sonal use  suitable  to  the  style  in  which  the  husband  chooses  to 
live.  Under  such  circumstances,  the  presumption  is  in  favor 
of  the  wife's  authority  to  contract  on  behalf  of  her  husband. 
I  Evans,  Ag.  166;  Wilson  v.  Herbert,  41  N.  J.  Law,  454;  Jolly 
V.  Reese,  15  C.  B.  (N.  S.)  628;  3  Smith,  Lead.  Cas.  (9th  ed.) 
1757,  notes  to  ]\Ianby  v.  Scott. 

But,  where  the  husband  and  wife  are  living  in  a  state  of  sepa- 
ration, the  presumption  is  against  the  authority  of  the  wife  to 
bind  the  husband  by  her  contract.  Under  such  circumstances. 
the  general  rule  is  that  the  husband  is  not  liable.  To  this  rule 
there  are  two  exceptions  pertinent  to  this  inquiry,  the  first  of 
which  is,  where  a  husband  and  wife  separate  and  live  in  a 
state  of  separation  by  mutual  consent,  without  any  provision  for 
her  maintenance  or  means  of  her  own  for  her  support;  the 
other,  where  the  wife  leaves  her  husband  under  the  stress  of 
his  misconduct  of  such  a  character  as  in  law  is  regarded  as  a 
justifiable  cause  for  the  wife's  quitting  her  husband's  societ}-. 
In  such  cases,  the  presumption  being  against  the  liability  of  the 
husband  for  the  wife's  contract,  the  Inirden  of  proof  is  upon 
the  party  seeking  to  enforce  against  him  a  liability  for  her  con- 
tract.    He  must  show  affirmatively  the  special  circumstances 


154  WIFE  S  CONTRACTS  FOR  NECESSARIES,  ETC. 

which  shall  fix  the  responsibility  on  the  husband  in  order  to 
establish  his  cause  of  action.  ]\lain\varing  v.  Leslie,  i  Moody 
&  M.  i8;  Johnston  v.  Sumner,  3  Hurl.  &  N.  261-268;  Blowers 
V.  Sturtevant,  4  Denio,  46;  Breinig  v.  Meitzler,  23  Pa.  St.  156; 
Snover  v.  Blair,  25  N.  J.  Law,  94;  2  Kent  Comm.  147.  The 
cases,  English  and  American,  on  this  subject,  are  collected  in 
the  American  editions  of  Smith's  Leading  Cases,  under  the 
head  of  Manby  v.  Scott,  supra. 

The  certificate  of  the  court  of  common  pleas  states  that  it 
did  not  appear  that  the  wife  had  any  reason  for  leaving  her 
husband,  and  the  facts  set  out  in  the  certificate  tend  to  show 
that  she  left  of  her  own  volition,  and  without  any  justifiable 
cause.  Nor  will  the  fact  that  the  plaintiff  had  no  knowledge 
tliat  the  wife  was  living  separate  from  her  husband  avail  to 
relieve  the  plaintiff  from  the  burden  of  proof.  Independently 
of  agency,  express  or  implied,  from  cohabitation,  the  liability 
of  the  husband  upon  contracts  made  by  the  wife,  pledging  his 
credit,  arises  from  the  acts  or  misconduct  of  the  husband.  As 
was  said  by  Lord  Selborne,  there  is  no  mandate  in  law,  from 
the  fact  of  marriage  only,  making  tlie  wife  the  agent  in  law  of 
her  husband  to  bind  him  and  pledge  his  credit,  except  in  the 
particular  case  of  necessity, — a  necessity  which  may  arise 
where  the  husband  has  deserted  the  wife,  or  has  by  his  conduct 
compelled  her  to  live  apart  from  him.  Debenham  v.  Mellon, 
L.  R.  6  App.  Cas.  24-31.  On  any  other  hypothesis,  a  wife  liv- 
ing separate  from  her  husband  without  justifiable  cause,  or  even 
through  her  own  misconduct,  would  have  it  in  her  power  to 
pledge  his  credit  by  seeking  persons  with  whom  to  deal  who 
were  unaware  of  the  family  relations. 

There  being  no  proof  of  facts  from  which  agency  might  be 
implied,  and  from  the  fact  that  the  wife  was  living  apart  from 
her  husband,  the  presumption  being  that  she  had  no  authority 
to  bind  the  husband,  the  plaintiff  could  make  no  case  against 
the  husband  except  on  proof  of  those  particular  circumstances 
from  which  the  husband's  liability  would  result  as  a  mandate 
in  law.  To  make  out  a  cause  of  action  against  the  husband, 
the  plaintiff  was  bound  to  prove  those  special  circumstances 
from  which  alone  the  husband's  liability  for  the  plaintiff's  de- 
mands would  result.  Without  such  proof,  he  had  no  case. 
Upon  the  case  as  certified,  the  court  of  common  pleas  gave 
judgment  for  the  plaintiff.  That  judgment  was  erroneous,  and 
should  be  reversed. 


COVVELL  V.  PHILLIPS.  155 

COWELL  V.  PHILLIPS. 
17  R.  L  188,  20  Atl.  933,  II  L.  R.  A.  182.   (1890.) 

Action  by  Anthony  Cowell  and  others  against  Charles  W, 
PhilHps  for  goods  sold  defendant's  wife.  Verdict  for  plaintiffs. 
Petition  for  new  trial  dismissed. 

STIXESS,  ].:  The  plaintiffs  sold  and  delivered  the  furni- 
ture sued  for  to  the  defendant's  wife  upon  her  order,  and 
charged  the  bill  to  the  defendant.  They  had  previously  made 
similar  sales  upon  her  order,  and  the  defendant  had  paid  the 
bills  without  objection.  Upon  one  occasion,  the  defendant  had 
accompanied  his  wife  to  the  plaintiff's  store,  when  a  bill  of 
goods  was  purchased,  but  at  other  times  she  was  alone. 

At  the  time  of  the  last  sale,  the  defendant  and  his  wife  had 
separated,  and  these  goods  were  sent  to  the  house  where  the 
wife  was  living  apart  from  her  husband,  having  left  him,  so 
far  as  appears,  without  justifiable  cause.  The  plaintiff  did  not 
know  of  the  separation.  The  defendant  requested  the  court 
below  to  instruct  the  jury  as  follows :  "If  the  husband  provided 
a  suitable  home,  according  to  his  means,  for  his  wafe,  and  she 
voluntarily  left  the  same,  without  fault  on  his  part,  he  was  not 
liable  for  debts  contracted  by  her  while  living  apart  from  her 
husband,  by  reason  of  his  being  her  husband,  even  though  he 
had  paid  for  goods  ordered  by  the  wife  and  delivered  at  their 
home  while  living  together,  whether  the  persons  dealing  with 
her  had  notice  of  the  separation  or  not." 

The  court  instructed  the  jury  that,  if  a  woman  lives  apart 
from  her  husband  by  her  own  wrong,  the  husband  is  discharged 
from  supporting  her ;  but  when  a  tradesman  furnishes  goods  to 
a  wife  after  separation,  the  husband  having  previously  paid  for 
goods  furnished  to  her,  the  tradesman  not  knowing  of  the  sepa- 
ration, and  not  having  reasonable  cause  to  know  it,  the  agency 
may  be  presumed  to  continue  until  knowledge  is  brought  home 
to  the  tradesman.  Exception  was  taken  to  this  instruction.  We 
think  the  instruction  as  given  was  correct. 

-A  married  woman  may  bind  her  husband  for  goods  bought 
by  her  in  two  ways :  For  necessaries,  by  reason  of  his  obliga- 
tion to  support  her,  when  he  omits  or  refuses  to  provide  them 
under  circumstances  which  make  it  his  duty  so  to  do;  and  for 
other  things,  when  she  acts  as  his  agent,  under  his  authority, 
express  or  implied.  In  the  former  case  she  may  bind  him  with- 
out, or  even  against,  his  personal  authority,  by  what  is  termed 
"her  agency  in  law."  In  the  latter  case  she  can  bind  him  only  in 
the  way  that  any  person  may  bind  another,  by  an  agency  in  fact. 


156  wife's  contracts  for  necessaries,  etc. 

The  request  made  in  this  case  related  only  to  the  marital 
obligation,  and  instruction  was  given  substantially  as  requested. 
If  the  husband  provided  a  suitable  home  for  his  wife,  which 
she  voluntarily  left,  without  fault  on  his  part,  it  is  clear  that  he 
Avould  not  be  liable  for  goods  furnished  to  her  while  away,  by 
reason  of  the  fact  of  marriage.  Debenham  v.  Mellon,  L.  R.  6 
App.  Cas.  24.  The  portion  of  the  instruction  excepted  to  cov- 
ered the  liability  of  the  husband,  by  reason  of  the  agency  of  the 
wife. 

The  only  question  in  this  case,  therefore,  is  whether  the 
plaintiffs  might  presume  tliat  the  agency,  evidenced  by  previous 
dealing,  continued  until  they  knew  or  had  reason  to  know  of 
the  separation  or  of  a  revocation  of  the  agency.  This  question 
relates  to  the  law  of  agency,  rather  than  to  the  relation  of  hus- 
band and  wife.  The  liability  of  the  husband  in  case  of  such 
agency  was  settled  on  the  case  of  Manby  v.  Scott,  i  Sid.  109, 
120,  by  the  third  resolution  agreed  to  by  the  judges  (2  Smith, 
Lead.  Cas.,  Hare  &  W.  Notes,  *4i8),  as  follows :  "If  the  wife 
purchase  goods,  and  the  husband,  by  any  act  precedent  or  sub- 
sequent, ratifies  the  contract  by  his  assent,  the  husband  shall 
be  liable  upon  it;  if  not  on  his  assumpsit  in  law,  yet  on  his 
assumpsit  in  fact,  whether  the  goods  are  for  himself,  or  for 
his  children,  or  for  his  family ;  all  which  positions  are  so  obvi- 
ous that  they  require  no  demonstration."  If,  then,  the  hus- 
band has  held  tlie  wife  out  as  his  agent,  by  previous  dealings, 
the  person  has  the  right  to  presume  that  the  authority  continues 
until  he  has  reason  to  know  to  the  contrary.  This  is  the  well- 
established  rule  in  cases  of  agency.  See  Story,  Ag.  §  470,  and 
note ;  i  Amer.  &  Eng.  Enc.  Law,  448,  and  cases  cited.  A  famil- 
iar illustration  of  this  rule  is  found  in  the  case  of  a  retiring 
partner.  This  was  the  substance  of  the  instruction  given  to  the 
jury,  and  it  was  therefore  correct.  Mickelberry  v.  Harvey, 
58  Ind.  523;  M'George  v.  Egan,  5  Bing.  N.  C.  196;  Reid  v. 
Teakle,  13  C.  B.  627;  Benjamin  v.  Benjamin,  15  Conn.  347; 
Cany  v.  Patton,  2  Ashm.  140. 

Petition  dismissed. 


STEINFIELD  v.  GIRRARD. 

103  Maine  151,  68  Atl.  630.    (1907.) 

Action  by  H.  L.  Steinfield  against  Henry  Girrard  to  recover 
for  merchandise  furnished  to  defendant's  wife.  Verdict  for 
plaintiff  for  $18.08.  Defendant  excepted  to  certain  rulings  of 
the  trial  justice.   Exceptions  sustained. 


STEINFIELD  V.  GIRRARD.  1 57 

KTXG,  J.:  Action  of  assumpsit  to  recover  the  price  of 
certain  merchandise  furnished  to  the  wife  of  defendant. 

Verdict  for  plaintiff.  The  case  is  before  the  law  court  on 
defendant's  exceptions  to  the  exclusion  of  testimony  and  cer- 
tain instructions  of  the  presiding  justice. 

It  appeared  in  evidence  that  the  wife  had  never  before  bought 
any  goods  of  plaintiff  on  defendant's  credit,  that  she  had  not 
been  living  with  her  husband  for  some  few  months  prior  to  the 
purchase,  but  that  the  plaintiff  was  ignorant  of  the  separation. 

The  defendant  offered  his  own  testimony  to  the  effect  that 
he  was  always  willing  and  prepared  to  provide  a  home,  and  all 
necessaries,  for  his  wife,  and  that  she  was  living  apart  from 
him  on  the  date  of  the  purchase  of  the  goods  sued  for,  without 
fault  on  his  part.  This  testimony  w^as  excluded  for  the  reason, 
as  stated  by  the  presiding  justice,  that,  unless  the  plaintiff 
knew  of  the  separation,  the  testimony  offered  would  be  imma- 
terial. To  that  ruling  the  defendant  excepted.  We  think  that 
the  exception  must  be  sustained. 

It  was  incumbent  upon  tlie  plaintiff  to  establish  the  authority 
of  the  wife  to  bind  the  husband  by  the  purchase  of  the  goods. 
The  only  evidence  relied  upon  for  this  purpose  was  the  fact  of 
marriage.  It  may  be  doubtful,  if  there  is  any  presumption  of 
agency  on  the  part  of  the  wife  to  pledge  her  husband's  credit 
for  necessaries  arising  from  the  marriage  contract  alone,  inde- 
pendent of  the  conjugal  relation  and  cohabitation;  but,  if  there 
is  any  such  presumption,  it  is  rebuttable,  and  may  be  dis- 
proved by  the  husband.  Baker  v.  Carter,  83  IMaine  132,  21  Atl. 
834,  23  Am.  St.  764. 

The  authority  of  a  wife  to  pledge  her  husband's  credit  for 
necessaries  arising  from  tlie  marital  relation  alone  is  only  co- 
existent, and  coextensive  with  her  necessity  occasioned  by  his 
failure  to  fulfill  his  duty  in  this  respect.  If  his  duty  has  been 
performed,  or  no  longer  continues,  then  no  necessity  can  legally 
arise  which  would  entitle  the  wife  to  such  authority. 

When  a  wife  deserts  her  husband,  without  his  fault,  she  for- 
feits all  right  to  support  and  maintenance  from  him,  and,  a  for- 
tiori, in  such  case,  she  carries  with  her  no  authority  to  use  his 
credit,  even  for  necessaries.  Peaks  v.  IMayhew,  94  IMaine  571, 
48  Atl.  172. 

The  testimony  offered  in  the  case  at  bar  was  to  the  effect  that 
the  wife  had  in  fact  forfeited  her  right  to  support  from  the 
defendant  by  a  wilful  violation  of  marital  duty,  a  separation 
from  him  without  his  fault,  and  that  he  was  willing  and  pre- 
pared to  provide  a  home  and  all  necessaries  for  her.  If  true 
it  would  have  established  affirmativelv  a  complete  defense  to 


158  wife's  contracts  for  necessaries,  etc. 

the  action.  The  defendant  had  a  right  to  make  this  defense 
irrespectitve  of  the  plaintiff's  lack  of  knowledge  of  the  separa- 
'tion. 

The  testimony  offered  should  have  been  admitted.  Its  exclu- 
sion was  prejudicial  to  the  defendant,  depriving  him  of  the 
right  to  present  facts  which  would  disprove  any  liability  on  his 
part  under  the  action.  For  that  reason  this  exception  must  be 
sustained,  and  a  new  trial  granted. 

The  conclusion  which  we  have  reached  that  a  new  trial  must 
be  granted  on  account  of  the  exclusion  of  the  testimony  offered 
by  the  defendant  renders  unnecessary  a  consideration  of  the 
other  exceptions. 

Exceptions  sustained. 


KIMBALL  V.  KEYES. 

II  Wend.  (N.Y.)  33.    (1833.) 

Kimball  sued  Keyes  in  a  justice's  court  for  goods  sold  and 
delivered  to  a  daughter  of  defendant  who  lived  with  her 
mother,  defendant's  wife.  Defendant  and  wife  were  living 
apart,  but  he  had  made  reasonable  provision  for  her  support. 
The  other  facts  appear  in  the  opinion.  Judgment  for  plain- 
tiff for  $24.84.  This  judgment  was  reversed  by  the  court  of 
common  pleas  and  the  plaintiff  sued  a  writ  of  error  to  the 
Supreme  Court.    Judgment  of  court  of  pleas  affirmed. 

SUTHERLAND,  J. :  The  court  of  common  pleas  properly 
held,  that  upon  the  evidence  in  this  case,  the  defendant  was  not 
responsible  for  the  goods  sold  by  the  plaintiff  to  the  wife  and 
daughter  of  the  defendant.  The  defendant  living  separate  from 
his  family,  was  undoubtedly  bound  to  furnish  them  with  neces- 
saries suitable  to  their  condition,  and  his  omission  to  do  so, 
would  furnish  them  with  a  general  credit  to  that  extent;  but 
he  has  no  right  to  supply  them  in  such  reasonable  manner  as 
he  may  think  proper ;  he  can  employ  such  mechanics  and  store 
keepers  as  he  chooses,  and  can  prohibit  all  others  from  giving 
them  credit  on  his  account.  That  seems  to  have  been  the  fact 
in  this  case.  Mr.  Wood,  the  son-in-law  of  the  defendant,  test- 
ified that  he  kept  a  drygoods  and  grocery  store,  and  that  the 
defendant  had  made  an  arrangement  with  him  to  furnish  his 
family  with  all  the  necessaries  in  his  line  which  they  required, 
which  he  had  accordingly  done ;  that  he  had  made  similar  ar- 


KIMBALL  y.    KEYES.  159 

rangements  with  butchers  and  others ;  that  he  sent  a  man  fre- 
quently to  see  that  they  were  properly  taken  care  of,  and  that 
the  defendant  had  always  provided  comfortably  for  them.  It 
was  shown  that  these  arrangements  were  well  known  to  the 
defendant's  wife,  and  that  the  defendant  had  given  public 
notice,  in  a  newspaper  which  the  plaintiff  took,  prohibiting  all 
persons  from  trusting  his  family  without  his  special  orders, 
and  that  they  had  previously  had  no  dealings  with  the  plain- 
tiff. Under  such  circumstances,  the  defendant  can  not  be  held 
responsible.  2  Kent's  Comm.  124,  5,  6;  11  Johns.  (N.  Y.) 
281 ;  2  Strange,  875,  1214,  and  other  cases  cited  by  Ch,  Kent. 
Judgment  affirmed. 


BAKER  V.  BARNEY. 

8  Johns.  (N.  Y.)  72,  5  Am.  Dec.  326.    (1811.) 

Assumpsit  by  Barney  for  $11.97  for  goods  sold  to  Baker's 
wife.  Baker  and  wife  had  separated  by  mutual  consent  sev- 
eral weeks  before  the  delivery  of  the  goods  to  her,  and  plain- 
tiff's clerk  testified  that  it  was  commonly  reported  that  the  two 
were  not  living  together.  It  was  orally  agreed  at  the  time  of 
the  separation  that  Baker  was  to  give  his  wife  one  thousand 
dollars,  but  there  was  no  evidence  of  any  payment  by  him  to 
her.    Judgment  for  plaintiff.   Affirmed. 

BY  COURT :  If  the  husband  and  wife  part  by  consent,  and 
he  secures  to  her  a  separate  maintenance  suitable  to' his  condi- 
tion and  circumstances  in  life,  and  pays  it  according  to  agree- 
ment, he  is  not  answ^erable  even  for  necessaries ;  and  the  gen- 
eral reputation  of  the  separation  will  in  that  case  be  sufficient. 
It  was  so  ruled  by  Holt,  C.  J.,  in  Todd  v.  Stokes,  i  Salk.  116; 
and  this  general  doctrine  seems  to  have  been  conceded  in 
Nurse  v.  Craig,  5  Bos.  &  P.  148,  in  which  case  all  the  author- 
ities are  carefully  reviewed,  and  the  extent  of  the  husband's 
responsibility,  when  he  and  his  wife  part  by  consent,  fully  and 
ably  discussed.  The  court  in  that  case  laid  great  stress  upon 
the  circumstance  of  the  due  security  and  punctual  payment  of 
the  pecuniary  maintenance  allowed  to  the  wife.  In  the  pres- 
ent case  the  husband  and  wife  parted  by  consent  a  few  weeks 
prior  to  the  sale  of  the  goods,  but  the  contract  was  not  reduced 
to  writing  until  the  spring  following;  and  there  was  no  evi- 
dence of  payment  of  any  part  of  the  sum  agreed  to  be  given  to 


i6o  wife's  contracts  for  necessaries,  etc. 

the  wife.  The  whole  rested  in  a  naked  promise  without  valid- 
ity, and  if  the  husband  was  from  that  time  to  be  discharged 
from  responsibility  for  necessaries,  the  wife  might  have  been 
left  to  subsist  on  charity.  The  goods  taken  up  in  this  case  can 
not  be  considered  as  unreasonable  or  improper ;  and  the  de- 
fense below  failed  from  the  want  of  showing,  that  at  the  time 
of  the  sale  of  the  goods  the  allowance  was  punctually  paid  or 
secured  according  to  the  agreement. 

The  judgment  must  therefore  be  affirmed. 


3.    Where  Credit  Was  Given  to  Wife  Personally. 


MITCHELL  V.  TREANOR. 
II  Ga.  324,  56  Am.  Dec.  421.    (1852.) 

Action  of  assumpsit.    Verdict  and  judgment  for  plaintiff. 
Reversed. 

LUMPKIN,  J. ;  This  was  an  action  of  assumpsit,  brought 
by  John  Treanor  against  John  J.  Mitchell,  to  recover  the  value 
of  a  bill  of  goods  furnished  by  the  plaintiff  to  the  wife  of  the 
defendant.  The  facts,  as  agreed  upon  by  the  parties,  are  these : 
The  merchandise  charged  in  the  account  was  purchased  by 
Mrs.  jMitchell  in  the  year  1849,  commencing  on  the  third  of 
February  and  ending  on  the  twenty-seventh  of  December  of 
that  year ;  she,  during  the  whole  of  that  time,  living  separate 
from  her  husband;  having  been  constrained,  by  family  dis- 
agreements and  unkindness,  to  leave  his  house  and  live  apart 
from  him,  with  her  infant  child  seven  years  old.  The  articles 
were  charged  in  the  original  book  of  entries  to  the  wife,  and  not 
to  the  husband.  It  appeared,  also,  that  during  the  year  1849 
Dr.  Mitchell  gave  an  order  to  some  third  person,  addressed 
to  Treanor,  desiring  him  to  supply  the  bearer  with  six  yards 
of  homespun,  which  the  plaintiff  refused  to  purchase,  saying 
that  Mitchell,  the  defendant  had  no  account  with  him. 

Dr.  Mitchell  was  then,  and  is  now,  in  possession  of  some 
thirteen  slaves  and  other  property ;  and  the  things  bought  were 
suitable  to  his  circumstances  and  condition  in  life.    At  the 


MITCHELL  V.  TREANOR.  l6r 

time  of  the  separation,  no  provision  was  made  for  the  wife. 
Subsequently,  to  wit,  in  February,  1850,  a  partial  divorce  was 
granted  to  her;  and  by  the  verdict  of  tlie  jury,  an  allowance 
for  past  maintenance  was  decreed  by  the  jury.  Upon  this 
testimony,  is  the  husband  liable  for  the  debt? 

As  cohabitation  is  presumptive  evidence  of  the  wife's  author- 
ity to  contract,  it  is  for  the  husband  to  rebut  that  presumption, 
by  showing  that  the  goods  were  supplied  under  such  circum- 
stances tliat  he  is  not  bound  to  pay  for  them ;  but  where  the 
husband  and  wife  are  living  apart,  the  onus  lies  the  other  way, 
and  it  is  for  the  tradesman  to  show  that  the  separation  has 
taken  place  under  such  circumstances  as  will  render  tlie  hus- 
band liable.    2  Bright  on  Husband  and  Wife,  11,  12. 

We  think  the  proof  that  the  wife  was  constrained  to  leave 
the  house  of  the  husband  on  account  of  mistreatment  is  suffi- 
cient to  make  him  chargeable  for  her  maintenance.  She  was 
ejected  from  his  domicile  with  a  letter  of  credit  for  neces- 
saries. 

Neither  is  he  relieved  from  liability  by  the  subsequent  pro- 
vision made  by  the  court  and  jury  for  past  alimony,  tlie  goods 
having  been  previously  delivered. 

But  did  Mr.  Treanor  deal  with  Mrs.  IMitchell  on  the  credit  of 
the  defendant,  her  husband  ?  If  he  did  not,  then  the  husband  is 
not  answerable. 

Chancellor  Kent  lays  down  tlie  rule  explicitly,  that  if  tlie 
tradesman  furnishes  the  goods  to  the  wife,  and  gives  tlie  credit 
to  her,  the  husband  is  not  liable,  though  she  was  at  the  time 
living  with  him.  2  Kent's  Com.  146.  A  fortiori  is  he  not  liable 
if  they  were  living  apart  ? 

Mv.  Bright  says  the  husband  has  been  held  not  to  be  liable 
where  the  dealing  with  the  wife  took  place  on  tlie  credit  of 
another;  and  where  the  tradesman  made  out  the  invoice  and 
accounts  to  the  wife,  and  drew  bills  of  exchange  for  her  to 
accept:  2  Bright  on  Husband  and  Wife,  18.  Clancy  main- 
tains the  same  doctrine :  Treatise  on  Husband  and  Wife,  25,  26. 

The  principle  thus  stated  is  fully  sustained  by  all  the  re- 
ported cases.  See  Holt  v.  Brien,  4  Barn.  &  Aid.  252;  Mon- 
tague V.  Benedict,  3  Barn.  &  Cress.  631 ;  S.  C,  sub.  nom. 
Montague  v.  Baron,  5  Dow.  &  Ry.  532 ;  Harvey  v.  Norton,  4 
Jur.  42;  Freestone  v.  Butcher,  9  Car.  &  P.  647;  IMetcalfe  v. 
Shaw,  3  Camp.  22;  Bentky  v.  Griffin,  5  Taunt.  356. 

In  Aletcalfe  v.  Shaw,  supra,  Lord  Ellenborough  declared 
that  it  was  a  plain  ground,  that  if  the  goods  were  not  supplied 
on  tlie  credit  of  the  husband,  he  was  not  liable.    On  a  writ  of 
II— Cases  Dom.  Rel. 


i62  wife's  contracts  for  necessaries,  etc. 

error  to  reverse  a  judgment  of  the  king's  bench,  it  was  decided 
in  tlie  exchequer  chamber,  that  assumpsit  against  the  hus- 
band for  money  lent  to  the  wife,  at  the  request  of  the  wife, 
was  not  maintainable ;  because  it  appeared  on  the  record  that 
the  contract  was  made  with  the  wife,  and  the  credit  given  to 
her,  and  not  to  tlie  husband.  Stone  v.  Macnair,  in  error,  7 
Taunt.  432 ;  S.  C,  4  Price,  48.  Being  satisfied  then,  that  the 
general  liability  of  the  husband  is  repelled  by  the  proof  which 
goes  to  show  that  tlie  credit  v\-as  given  to  tlie  wife,  and  that 
the  plaintifif  looked  to  her  alone  for  payment,  the  cause  must  be 
sent  down  for  another  trial. 

Whether  a  tradesman  who  furnishes  goods  to  a  wife  gives 
credit  to  her  or  her  husband,  is  a  question  of  fact  to  be  deter- 
mined by  tlie  jury. 


GAFFORD  V.  DUNHx\M. 

Ill  Ala.  551,  20  So.  346.   (1896.) 

Action  against  a  husband  and  wife  for  goods  sold  to  the 
wife.  Judgment  in  favor  of  the  wife  and  against  the  husband. 
Judgment  against  husband  reversed. 

COLEMAN,  J. :  F.  W.  Dunham  sued  the  appellant,  F.  H. 
Gafford,  and  his  wife,  M.  B.  Gafford,  upon  an  account  for 
groceries  and  supplies  alleged  to  have  been  sold  by  one  Bog- 
gan,  the  assignor  of  plaintiff.  The  uncontroverted  evidence 
shows  that  the  articles  were  sold  to,  and  upon  the  sole  credit  of, 
M.  B.  Gafford.  The  contract  for  their  purchase  was  made  with 
her  only,  and  all  payments  which  had  been  credited  upon  the 
account  were  made  by  her.  The  articles  were  charged  to  her, 
and  the  name  of  F.  H.  Gafford  nowhere  appears  upon  the 
books  of  account,  nor  is  it  pretended  that  at  any  time  was  he 
regarded  as  the  debtor.  After  hearing  the  evidence,  the  court, 
without  the  intervention  of  a  jury,  rendered  judgment  in  favor 
of  j\I.  B.  Gafford,  and  against  the  husband,  F.  H.  Gafford,  who 
prosecutes  the  present  appeal.  At  the  trial,  the  wife  interposed 
the  plea  of  coverture,  and  the  failure  of  the  husband  to  give 
his  assent  in  writing  to  the  contract.  This  plea  was  fully  sus- 
tained by  the  evidence.  We  presume  the  court  rendered  judg- 
ment against  the  husband,  upon  the  ground  that  as  the  con- 
tract made  with  the  wife  was  void,  and  as  the  evidence  showed 
that  tlie  articles  purchased  were  necessaries  of  life,  and  suit- 


FEINER  V.  BOYNTON.  163 

able  to  the  deforce  and  station  in  life  of  the  wife  of  F.  H.  Gaf- 
ford,  his  common-law  liability  arose,  and  he  was  chargeable 
for  such  necessaries  furnished  to  her. 

Considered  with  reference  to  the  evidence  as  to  the  furnish- 
ing of  the  articles  to  tlie  wife,  or  as  to  the  common-law  liabil- 
ity of  the  husband  for  necessaries  furnished  to  the  wife,  the 
conclusion  of  the  court  was  erroneous.  The  common-law  lia- 
bility of  the  husband  for  necessaries  and  suitable  comforts  has 
always  rested  upon  the  assumption  that  credit  was  given  to  the 
husband,  and  not  to  the  wife,  and  tliat  the  purchase  was  made 
with  his  implied  assent.  In  no  case  did  this  liability  arise  when 
the  facts  showed  affirmatively  that  credit  was  given  to  the  wife, 
and  charged  to  her,  and  not  to  the  husband,  and  the  goods  were 
sold  not  upon  his  implied  assent  that  they  were  to  be  charged 
to  him.  Hughes  v.  Chadwick,  6  Ala.  651  ;  Pearson  v.  Darring- 
ton,  32  Ala.  231 ;  O'Connor  v.  Chamberlain,  59  Ala.  431 ;  Gayle 
V.  Marshall,  70  Ala.  522. 

The  evidence  also  is  satisfactory  that  the  goods  sued  for 
were  furnished  to  some  one  during  the  absence  of  both  hus- 
band and  wife  from  home,  and  that  neither  ever  received 
or  used  the  articles  constituting  the  account.  The  fact  that 
M.  B.  Gafford  had  authorized  hor  cook  to  order  groceries  from 
Boggan  for  the  use  of  the  family,  to  be  charged  to  her,  in  no 
event  would  impose  a  liability  at  common  law  upon  the  hus- 
band, upon  the  order  of  the  cook  given  to  the  merchant  dur- 
ing the  absence  of  both  husband  and  wife.  Strauss  v.  Glass, 
108  Ala.  546,  18  So.  526,  and  sections  of  the  Code  construed 
in  the  opinion.  The  judgment  is  reversed,  and  a  judgment 
will  be  here  rendered  in  favor  of  the  appellant.  Reversed 
and  rendered. 


FEINER  V.  BOYXTON. 

73  N.  J.  L.  136,  62  Atl.  420.    (1905.) 

Action  by  Elizabeth  Feiner  and  others  against  Harriet  G. 
Boynton  for  goods  furnished.  Judgment  for  plaintiffs.  Re- 
versed. 

GARRETSOX,  J. :  The  plaintiffs  recovered  a  judgment 
against  the  defendant  in  a  district  court  for  the  value  of  goods 
furnished.  The  defendant  is,  and  at  the  time  the  goods  were 
furnished  was,  a  married  woman  living  with  her  husband. 


164  wife's  contracts  for  necessaries,  etc. 

The  goods  furnished  were  for  the  personal  use  of  the  de- 
fendant. It  appears  from  tlie  state  of  tlie  case  that  the  hus- 
band provided  the  defendant  with  money  from  time  to  time 
for  her  household  and  personal  expenses;  tliat  the  account 
with  the  plaintiffs  had  always  been  in  the  defendant's  name; 
tliat  tlie  defendant  paid  the  bills,  of  which  there  were  a  large 
number,  during  tlie  eleven  years  through  which  the  account  had 
been  running,  with  her  own  checks,  drawn  upon  a  bank  where 
her  husband  had  deposited  money  for  her,  of  which  deposit 
the  plaintiffs  had  no  knowledge  at  all ;  that  the  plaintiffs  had 
never  had  any  dealings  with  her  husband;  that  tlie  husband 
deposited  various  sums  of  money,  ranging  from  $300  to  $700, 
in  tlie  People's  Bank  of  East  Orange,  and  that  the  defendant 
drew  her  own  checks  against  said  account  to  pay  for  the  vari- 
ous household  expenses,  as  well  as  for  her  clolJiing;  tliat  she 
had  a  separate  estate. 

There  is  no  evidence  to  show  that  the  defendant  ever  made 
any  express  contract  with  the  plaintiff  which  would  bind 
her  separate  estate,  and  the  only  evidence  from  which  a  con- 
tract could  be  inferred  was  that  the  goods  were  charged  to  the 
defendant  on  tlie  plaintiff's  books,  and  that  the  defendant 
paid  the  bills  with  her  own  checks;  but  there  is  nothing  to 
show  that  the  defendant  knew  that  the  goods  were  being 
charged  to  her  by  the  plaintiffs,  and  the  checks  she  gave  in 
payment  were  of  her  husband's  moneys,  which  had  been  depos- 
ited by  her  husband  to  pay  for  household  expenses  and 
clothing. 

A  debt  incurred  for  the  necessary  clothing  of  a  married 
woman  is  presumably  the  debt  of  the  husband,  and,  if  incurred 
by  the  wife,  it  is  presumed  she  is  acting  as  the  agent  of  her  hus- 
band, unless  there  is  affirmative  evidence  to  show  that  she 
intended  to  charge  her  separate  estate.  In  Wilson  v.  Herbert, 
41  N.  J.  L.  461,  32  Am.  Rep.  243,  it  is  held:  "When  husband 
and  wife  are  living  together,  and  the  wife  purchases  articles 
for  domestic  use,  the  law  imputes  to  her  the  character  of  an 
agent  of  her  husband,  and  regards  him  as  the  principal  debtor. 
She  may  contract  for  such  articles  as  principal,  and  assume  the 
responsibility  of  a  principal  debtor.  But,  to  fix  upon  her  a 
liability,  it  must  affirmatively  appear  that  she  made  the  pur- 
chase on  her  individual  credit.  There  must  be  either  an  express 
contract  on  her  part  to  pay  out  of  her  separate  estate,  or  the 
circumstances  must  be  such  as  to  show  clearly  that  she  assumed 
individual  responsibility  for  payment,  exclusive  of  tlie  liability 
of  her  husband." 

The  judgment  of  the  district  court  is  reversed. 


HICKMAX  V.  HICKMAN.  165 

DIVORCE. 


Grounds    for    Divorce — Legislative    Power    Over    in- 
General. 


HICK:\IAX  v.  HICKMAN. 
I  Wash.  257,  24  Pac.  445,  22  Am.  St.  148.    (1890.) 

SCOTT,  J. :  Appellant  brouj^ht  this  suit  in  the  Superior 
Court  of  Jefferson  County,  to  obtain  a  divorce  upon  the  ground 
of  incurable  chronic  mania  or  dementia  of  the  defendant, 
existing  for  more  than  ten  years  prior  to  the  commencement 
of  the  action.  The  defendant,  by  her  guardian  ad  litem, 
interposed  a  general  demurrer  to  the  complaint. 

The  sole  question  presented  to  us  in  the  case  is  as  to  tlie 
validity  of  the  act  of  the  territorial  legislature  approved  Decem- 
ber 22,  1885,  making  such  incurable  chronic  mania  or  de- 
mentia one  of  tlie  grounds  upon  which  divorces  might  be 
granted,  where  the  affliction  had  existed  for  ten  years  or  more. 
The  judge  of  the  superior  court  by  whom  the  cause  was  tried 
held  that  the  act  was  contrary  to  public  policy,  and  was  there- 
fore unconstitutional.  No  other  objection  was  urged  here, 
nor  is  there  any  apparent  defect  in  the  act.  However  it  may 
be  regarded  as  a  measure  of  public  policy,  the  power  of  our 
territorial  legislature  under  the  organic  act  extended  to  all 
rightful  subjects  of  legislation.  The  reasons  for  which 
divorces  might  be  granted  have  always  been  recognized  as  one 
of  them,  under  our  system  of  government.  In  fact  our  terri- 
torial supreme  court  held  that  the  legislature  could  itself 
grant  a  divorce  by  a  special  act  (]\Iaynard  v.  \^alcntlne,  2 
Wash.  T.  3,  3  Pac.  195,)  and  this  was  subsequently  affirmed 
by  the  Supreme  Court  of  the  United  States  (Maynard  v.  Hill, 
125  U.  S.  190,  8  Sup.  Ct.  723.)  It  follows  that  die  legislature 
could  authorize  the  granting  of  divorces  by  the  courts,  for  any 
causes  that  the  legislature  deemed  sufficient,  and  whether  the 
same  should  be  due  to  misfortune  or  misbehavior  could  not 
affect  the  validity  of  such  laws.  The  judgment  of  the  lower 
court  is  reversed. 


1 66  DIVORCE. 

2.    Cruelty. 

HUIMBER  v.  HUMBER. 

(Miss.)  68  So.  i6i.   (1915-) 

Suit  for  divorce  by  James  E.  Humber  against  Lotta  E. 
Humber.  Cross-bill  by  defendant.  Decrees  denying  divorce 
and  awarding  separate  maintenance  to  wife.  Plaintiff  appeals. 
Affirmed. 

REED,  J. :  This  is  a  divorce  suit.  Both  parties  sought 
divorce,  each  from  the  other.  The  chancellor  refused  divorce 
to  both  of  them. 

The  original  bill  was  filed  by  the  husband,  James  E.  Humber. 
He  relied  upon  the  ground  in  the  statute  of  habitual  cruel 
and  inhuman  treatment.  Mrs.  Lotta  E.  Humber,  the  wife, 
filed  an  answer  to  the  bill,  denying  the  allegations  thereof, 
and  made  her  answer  a  cross-bill  in  which  she  asked  for 
divorce  on  the  ground  of  habitual  cruel  and  inhuman  treatment, 
and  also  prayed  for  alimony  pendente  lite  and  counsel  fees, 
to  enable  her  to  defend  the  suit;  also  for  permanent  alimony, 
and  for  general  relief  in  equity. 

The  chancellor  on  December  7,  1912,  upon  motion  by  ap- 
pellee for  the  allowance  of  alimony  pendente  lite  and  counsel 
fees  as  prayed  for  in  her  cross-bill,  ordered  the  appellant  to 
pay  her  alimony  at  the  rate  of  $30  per  month  from  Septem- 
ber 29,  1910,  the  date  when  the  original  bill  was  filed,  which 
aggregated  the  sum  of  $789,  and  the  further  sum  of  $100  for 
account  of  her  expenses  in  attendance  upon  court  and  prepara- 
tion of  her  defense,  and  the  further  sum  of  $250  on  account 
of  fees  to  her  solicitors  in  the  cause.  The  chancellor  fur- 
ther ordered  appellant  to  pay  his  wife,  from  the  time  of  the 
decree  and  during  the  pendency  of  this  suit,  the  sum  of  $40 
per  month  as  alimony.  From  this  decree  an  appeal  was  prose- 
cuted. 

Upon  the  final  hearing  of  the  cause  on  pleadings  and  proof, 
the  chancellor  in  his  final  decree,  after  refusing  to  dissolve 
the  bonds  of  matrimony,  as  prayed  for  in  both  the  original  bill 
and  the  cross-bill,  retained  the  original  bill,  answer,  and  cross- 
bill for  the  purpose  of  securing  to  appellee  proper  allowance 
of  counsel  fee  and  sufficient  allowance  for  her  separate  main- 
tenance and  support,  and  thereupon  fixed  her  solicitor's  fee 
at  the  sum  of  $1,250,  which  included  the  amount  of  $250 
already  allowed,   and   ordered  appellant  to  pay  to   appellee. 


HUMBER  V.  IIUMBER.  167 

his  wife,  the  sum  of  $ioo  per  month,  beginning  with  July  23, 
1913,  for  her  separate  maintenance  and  support.  From  this 
decree  appellant  prosecuted  his  appeal. 

By  agreement  of  counsel  for  a[)pellant  and  appellee,  both 
appeals  in  this  case  are  to  be  heard  and  considered  together 
as  one.  Appellant,  a  planter  of  Coahoma  county,  in  this 
state,  and  a  bachelor  who  had  reached  middle  life,  was  on 
July  12,  1910,  married  to  appellee,  then  Mrs.  Lotta  Edson, 
who  was  about  38  years  of  age,  at  her  place  of  residence, 
the  home  of  her  mother  in  Mt.  Vernon,  Ind.  Appellee  had 
previously  been  married  and  was  then  divorced.  The  mar- 
riage between  appellant  and  appellee  followed  a  courtship, 
chiefly  by  correspondence,  of  some  months,  during  which  time 
Mr.  Humber  visited  Airs.  Edson  at  her  home.  After  the  bridal 
tour  of  about  two  months,  and  as  soon  as  the  couple  reached 
the  home  of  Air.  Humber  in  this  state,  they  separated,  and 
shortly  thereafter  the  divorce  proceeding  was  instituted. 

From  the  proof  introduced  by  appellant,  it  appears  his  pur- 
pose to  show  that  the  cruel  and  inhuman  treatment  complained 
of  consisted  of  the  conduct  of  his  wife  in  a  number  of  inci- 
dents during  their  travels,  in  which  she  displayed  temper  and 
dissatisfaction  with  him  and  his  provisions  for  her  comfort 
and  entertainment,  and  wherein  she  was  inconsiderate  of  his 
feelings,  abusive  to  him,  discourteous  and  rude  to  his  friends 
and  kinsfolk,  and  generally  disagreeable  in  her  demeanor. 

[The  court  here  sets  out  the  testimony  of  both  parties,  and 
continues:] 

The  final  decree  of  the  chancellor  against  the  appellant 
in  this  case  was  on  controverted  facts,  for  we  find  that  appel- 
lee's testimony  was  in  clear  conflict  with  that  of  appellant. 
We  can  not  say  that  the  findings  of  the  chancellor  were 
manifestly  wrong,  and  we  therefore  can  not  reverse  him.  We 
find  in  the  final  decree  that  the  chancellor  held  that  appellant 
was  not  entitled  to  the  relief  sought,  even  though  his  testimony 
be  taken  to  be  true.  The  chancellor  decided  that  the  facts  as 
narrated  by  appellant  in  his  testimony  were  not  sufficient  to 
sustain  the  charge  of  habitual  cruel  and  inhuman  treatment 
which  he  relied  on  for  divorce. 

In  former  days  the  statute  provided  that  divorce  could  be 
granted  "for  habitual,  cruel  and  inhuman  treatment,  marked 
by  personal  violence."  The  words  "marked  by  personal 
violence"  were  omitted  in  the  Code  of  1892,  so  that  the  statute 
now  reads  "habitually  cruel  and  inhuman  treatment."  It  is 
not  necessary  to  show  physical  assault  or  actual  personal  vio- 
lence under  the  present  statute.     It  is  very  difficult  to  state 


l68  DIVORCE. 

any  fixed  rule  as  to  what  is  cruelty  in  cases  where  there  is  no 
personal  violence.  It  appears  to  be  the  general  holding  of  the 
courts  that  the  misconduct  of  the  spouse  complained  of  must 
be  such  as  will  impair  the  health  of  the  complainant  or  create 
an  apprehension  of  bodily  injury.  The  misconduct  of  the  party 
must  be  such  as  to  affect  the  life,  or  health,  or  general  safety 
of  the  complainant. 

We  do  not  believe  that  there  has  ever  been  a  clearer  or  more 
satisfactory  discussion  of  the  subject  of  divorce  by  reason  of 
cruelty  than  that  in  the  opinion  delivered  by  Sir  William  Scott, 
in  the  celebrated  case  of  Evans  v.  Evans,  2  Hagg.  (English 
Ecclesiastical  Reports)  310.  Though  extracts  from  this  in- 
teresting opinion  have  been  frequently  inserted  in  the  books,  we 
feel  tliat  we  are  again  justified  in  quoting  therefrom,  because 
we  can  not  find  elsewhere  a  better  statement  of  the  principles 
of  law  applicable  to  this  case,  and  we  tlierefore  make  the 
following  quotation : 

"What  is  cruelty?  In  the  present  case  it  is  hardly  neces- 
sary for  me  to  define  it,  because  the  facts  here  complained  of 
are  such  as  fall  within  the  most  restricted  definition  of  cruelty; 
they  affect  not  only  tlie  comfort,  but  tliey  affect  the  health 
and  even  the  life  of  the  party.  I  shall,  therefore,  decline  tlie 
task  of  laying  down  a  direct  definition.  This,  however,  must 
be  understood,  that  it  is  the  duty  of  courts,  and  consequently 
the  inclination  of  courts,  to  keep  the  rule  extremely  strict. 
The  causes  must  be  grave  and  weighty,  and  such  as  show  an 
absolute  imposibility  that  the  duties  of  the  married  life  can 
be  discharged.  *  *  *  What  merely  wounds  the  mental  feelings 
is  in  few  cases  to  be  admitted,  where  not  accompanied  with 
bodily  injury,  either  actual  or  menaced.  Mere  austerity  of 
temper,  petulance  of  manners,  rudeness  of  language,  a  want 
of  civil  attention  and  accommodation,  even  occasional  sallies 
of  passion,  if  they  do  not  threaten  bodily  harm,  do  not  amount 
to  legal  cruelty ;  they  are  high  moral  offenses  in  the  marriage 
state  undoubtedly,  not  innocent  surely  in  any  state  of  life, 
but  still  they  are  not  that  cruelty  against  which  the  law  can 
relieve.  Under  such  misconduct  of  either  of  the  parties, 
for  it  may  exist  on  one  side  as  well  as  on  the  other,  the  suffer- 
ing party  must  bear  in  some  degree  the  consequences  of  an 
injudicious  connection;  must  subdue  by  decent  resistance  or 
by  prudent  conciliation ;  and,  if  this  can  not  be  done,  both  must 
suffer  in  silence.  And  if  it  be  complained  that  by  this  in- 
activity of  the  courts  much  injustice  may  be  suffered,  and 
much  misery  produced,  the  answer  is  that  courts  of  justice  do 
not  pretend  to  furnish  cures  for  all  the  miseries  of  human  life. 


HUMBER  V.   IIUMBER.  169 

They  redress  or  punish  gross  violations  of  duty,  but  they  go  no 
further ;  they  can  not  make  men  virtuous  ;  and  as  the  happiness 
of  the  world  depends  upon  its  virtue,  there  may  be  much  un- 
ha[)piness  in  it  which  human  laws  cannot  undertake  to  remove. 
*    *      *  Of  course  the  denial  of  little  indulgences  and  particu- 
lar accommodations,  which  the  delicacy  of  the  world  is  apt 
to  number  among  its  necessaries,  is  not  cruelty.     It  may,  to 
be  sure,  be  a  harsh  thing  to  refuse  the  use  of  a  carriage,  or 
the  use  of  a  servant;  it  may  in  many  cases  be  extremely  un- 
handsome, extremely  disgraceful  to  the  character  of  the  hus- 
band ;  but  the  Ecclesiastical  Court  does  not  look  to  such  mat- 
ters.    The  great  ends  of  marriage  may  very  well  be  carried 
on  without  them;  and  if  people  will  quarrel  about  such  mat- 
ters, and  which  they  may  do  in  many  cases  with  a  great  deal 
of  acrimony,  and  sometimes  with  much  reason,  they  yet  must 
decide  such  matters  as  well  as  they  can  in  tlieir  own  domestic 
forum.     These  are  the  negative  descriptions  of  cruelty;  tliey 
show  only  what  is  not  cruelty,  and  are  yet  perhaps  the  safest 
definitions  which  can  be  given  under  the  infinite  variety'  of 
possible  cases  that  may  come  before  tlie  court.     But  if  it  were 
at  all  necessary  to  lay  down  an  affirmative  rule,  I  take  it  that 
the  rule  cited  by  Dr.  Bever  from  Clarke,  and  tlie  other  books 
of  practice,  is  a  good  general  outline  of  the  canon  law,  the  law 
of  this  country,  upon  this  subject.     In  the  older  cases  of  this 
sort,  which  I  have  had  an  opportunity  of  looking  into,  I  have 
observed  that  the  danger  of  life,  limb,  or  health  is  usually 
inserted  as  the  ground  upon  which  the  court  has  proceeded  to 
a  separation.     This  doctrine  has  been  repeatedly  applied  by 
the  court  in  the  cases  that  have  been  cited.     The  court  has 
never  been  driven  ofif  this  ground.     It  has  been  always  jealous 
of  the  inconvenience  of  departing  from  it,  and  I  have  heard 
no  one  case  cited  in  which  tlie  court  has  granted  a  divorce  with- 
out proof  given  of  a  reasonable  apprehension  of  bodily  hurt. 
I  say  an  apprehension,  because  assuredly  the  court  is  not  to 
wait  till  the  hurt  is  actually  done;  but  the  apprehension  must 
be  reasonable ;  it  must  not  be  an  apprehension  arising  merely 
from  an  exquisite  and  diseased  sensibility  of  the  mind.    Petty 
vexations  applied  to  such  a  constitution  of  mind  may  certainly 
in  time  wear  out  the  animal  machine,  but  still  they  are  not 
cases  of  legal  relief;  people  must  relieve  themselves  as  well 
as  they  can  by  prudent  resistance,  by  calling  in  the  succors 
of  religion  and  the  consolation  of   friends ;   but   the   aid   of 
courts  is  not  to  be  resorted  to  in  such  cases  with  any  effect." 
Counsel  for  appellant  contend  that  the  conduct  of  appellee 
was  such  as  to  seriously  impair  the  health  of  appellant.     In 


170  DIVORCE 

the  bill  of  complaint  it  is  charged  that  appellant  apprehended 

tliat  his  wife  would  do  him  great  bodily  harm  and  injury, 

and  tliat  it  was  not  safe  for  him  to  live  with  her.    We  can 

not  say  that  the  chancellor  erred  in  holding  that  appellant's 

own  testimony  was  insufficient  to  sustain  his  case.    We  can 

not  see  from  appellant's  testimony  that  he  has  been  injured 

in  health,  or  that  he  apprehended  at  tlie  time  of  the  separation 

that  his  wife  would  do  him  great  bodily  harm  and  injury, 

nor  do  we  see  that  it  was  then  unsafe  for  him  to  live  with  her. 
*    *    * 

[Decree  affirmed.] 


R.\DER  V.  RADER. 

136  Iowa  223,  113  N.  W.  817.     (1907-) 

Suit  by  a  wife  for  divorce  on  the  ground  of  cruelty.     De- 
cree for  plaintiff.     Affirmed.- 

DEEMER,  J.:  Cruel  and  inhuman  treatment,  calculated 
•to  endanger  life,  and  consisting  of  the  use  of  profane,  vulgar, 
and  obscene  language  toward  plaintiff,  threats  of  bodily  injury, 
and  deprivation  of  food  and  wearing  apparel,  were  the  grounds 
alleged  for  a  divorce.  These  were  denied  by  defendant.  The 
trial  court  granted  the  divorce  and  gave  plaintiff  the  custody 
of  a  minor  child.  The  parties  were  married  on  the  i8th  day 
of  March,  1903,  and  they  lived  together  as  husband  and  wife 
until  March  i,  1905,  when  plaintiff  left  her  husband  and  went 
to  live  with  her  parents. 

The  sole  question  in  the  case  is  one  of  fact,  and  that  is: 
Was  defendant  guilty  of  such  inhuman  treatment  of  plaintiff 
as  endangered  her  life?  We  shall  not,  of  course,  attempt  to 
set  out  the  entire  record.  It  is  enough  for  the  purpose  of  the 
case  to  state  our  conclusions.  While  the  case  is  not  a  strong 
one,  we  think  there  is  enough  to  show  that  defendant  used 
profane,  obscene,  insulting,  and  abusive  language  toward  his 
wife,  complained  of  her  cooking,  and  generally  treated  her  in 
such  a  manner  as  to  endanger  her  life  and  health.  He  never, 
it  is  true,  used  physical  violence,  but  he  did  that  which  to 
any  ordinary  woman  is  more  cruel.  After  the  first  few  weeks 
of  married  life,  he  seems  to  have  lost  all  affection  for  his 
wife.  He  was  profane  and  abusive,  criticised  her  cooking, 
failed  to  provide  her  with  clothing,  and  in  other  ways  made  life 


FRANKLIN  V.  FRANKLIN.  I7I 

miserable.  True,  most  of  the  charge  defendant  denies;  but 
the  witnesses  were  all  before  the  trial  court,  and  the  plain- 
tiff's condition  of  health  as  autoptically  disclosed,  and  her 
manner  and  demeanor  u[)on  the  witness  stand,  as  well  as  de- 
fendant's appearance  and  demeanor,  should  all  be  considered 
and  given  due  weight.  And  in  such  cases  as  this  the  finding  of 
the  trial  court  should  be  given  due  consideration  in  view  of 
the  conflicting  testimony  adduced. 

Plaintiff  was  comparatively  a  well  woman  when  she  mar- 
ried the  defendant,  and  when  she  left  him  she  was  much 
broken  both  in  healdi  and  spirits.  It  is  not  necessary,  of  course, 
to  show  physical  assaults  in  order  to  make  out  a  case  of  cruelty. 
The  general  treatment  accorded  the  wife  by  the  husband 
should  be  considered,  and  if,  upon  the  whole  record,  it  ap- 
pears that  the  life  and  health  of  the  wife  has  been  endangered 
by  ill  treatment,  be  that  nothing  more  than  abusive,  insulting, 
profane,  and  vulgar  language,  lack  of  affection,  or  failure  to 
furnish  the  necessaries  of  life,  a  divorce  should  be  granted. 

Giving  to  the  finding  of  the  trial  court  its  due  weight,  we  are 
constrained  to  hold  that  the  divorce  was  properly  granted. 
The  decree  is  therefore  afiirmed. 


3.    Desertion. 

FRANKLIN  v.  FRANKLIN. 


190  Alass.  349,  JJ  N.  E.  48,  4  L.  R.  A.  (N.  S.)  145,  5  Ann.  Cas. 

851.    (1906.) 

Suit  by  Edward  Franklin  against  Ellen  Franklin  for  divorce 
on  the  ground  of  desertion.     Decree  for  plaintiff". 

KNOWLTON,  C.  J. :  The  libelant  and  his  wife  are  na- 
tives of  England,  where  they  were  married  in  1874,  and  where 
several  children  were  born  to  tliem.  The  libelant,  being  a 
skillful  mechanic,  came  to  America  "to  better  his  condition 
in  life"  in  1891,  and  he  has  remained  here  ever  since.  His  wife 
refused  to  accompany  him,  and  he  has  not  seen  her  since  tlicir 
separation.  Some  of  their  children  have  joined  him  here.  He 
testified  that  on  two  occasions  after  his  arrival  in  America 
he  sent  her  sums  of  money  sufficient  to  defray  the  expense 
of  bringing  her  and  the  children  who  were  then  with  her  to 
America   in   a   comfortable   and   respectable   manner.      Once 


172  DIVORCE. 

she  kept  the  money,  but  refused  to  come,  and  on  the  other 
occasion  she  refused  to  come,  and  returned  a  portion  of  the 
money.  There  is  an  averment  in  the  Hbel  that  tlie  hbelant  has 
continuously  resided  in  this  commonweaUh  for  the  last  five 
years,  and  we  infer  from  the  report  that  there  is  no  question 
on  this  part  of  the  case. 

On  these  facts  the  libelant  asked  for  a  decree  of  divorce 
•nisi  for  desertion;  but  tlie  judge  declined  to  order  a  decree, 
and  ruled  that  the  libelee,  in  thus  refusing  to  follow  her  hus- 
band to  this  country,  was  not  guilty  of  desertion,  and  re- 
ported the  case  to  this  court.  If  the  ruling  was  wrong  and 
the  evidence  warrants  it,  a  decree  nisi  for  a  desertion  is  to 
be  entered. 

If  the  libelee  was  guilty  of  desertion,  there  is  no  question 
as  to  the  jurisdiction  of  the  court.  Jurisdiction  depends 
upon  the  situs  of  the  libelant  and  not  upon  the  place  of  tlie 
marriage,  or  of  the  commission  of  the  offense  against  the 
marital  relation.  Under  our  statute,  "if  tlie  libelant  has  lived 
in  the  commonwealth  for  five  years  last  preceding  the  filing 
of  the  libel,  *  *  *  a  divorce  may  be  decreed  for  any  cause 
allowed  by  law,  whether  it  occurred  in  this  commonwealth 
or  elsewhere,  unless  it  appears  that  the  libelant  has  removed 
into  this  commonwealth  for  the  purpose  of  obtaining  a  divorce." 
Rev.  Laws,  ch.  152,  §  5.  If,  therefore,  tlie  evidence  warrants 
a  finding  of  utter  desertion  by  the  libelee,  whether  it  occurred 
in  England  or  in  America,  and  if  it  continued  for  three  con- 
secutive years  next  prior  to  the  filing  of  the  libel,  a  divorce 
should  be  granted.    Rev.  Laws,  ch.  152,  §  i. 

The  fundamental  fact  to  be  considered  is  that  the  husband, 
as  head  of  the  family,  legally  responsible  for  its  support, 
has  a  right  to  choose  and  establish  a  domicile  for  himself 
and  his  wife  and  children.  A  refusal  of  the  wife  to  stay  with 
him  in  that  domicile,  without  a  sufficient  reason  for  her  re- 
fusal, is  desertion.  This  right  of  tlie  husband  is  not  limited 
to  the  state  or  country  in  which  the  parties  live  at  the  time 
of  their  marriage,  but  In  these  days  of  easy  communication 
between  different  countries,  and  different  parts  of  the  same 
country,  he  may  exercise  it  reasonably,  in  a  way  which  will 
change  his  citizenship  and  allegiance.  So  far  as  he  personally 
is  concerned,  if  his  duties  to  his  wife  are  left  out  of  considera- 
tion, this  right  is  doubtless  absolute.  But  in  reference  to  the 
rights,  duties,  and  liabilities  of  the  parties  in  their  marital 
relations  it  is  not  absolute.  It  should  be  exercised  with  some 
reference  to  the  welfare  of  the  wife.  We  can  conceive  of 
a  choice  of  a  domicile  so  plainly  unreasonable  and  improper. 


FRANKLIN  V.  FRANKLIN.  173 

in  reference  to  the  health  and  welfare  of  the  wife,  that  the  selec- 
tion of  it,  and  an  attempted  enforcement  of  his  general  marital 
right  to  have  her  share  it  with  him,  would  be  extreme  cruelty, 
such  as  would  justify  her  in  declining  to  accompany  him  or 
follow  him  to  such  a  place  of  abode.  His  wife's  marital  right 
and  his  duty  as  a  husband  would  come  in  conflict  with  the 
exercise  of  his  general  right  to  choose  his  own  domicile,  if 
he  attempted  to  exercise  the  right  in  such  a  way  as  would 
be  utterly  and  grossly  unreasonable  because  of  the  peril  to  her 
life  and  health,  and  perhaps  because  of  her  deprivation  of  other 
things  essential  to  her  welfare.  But  tlie  determination  of  such 
matters  must,  in  the  first  instance  and  ordinarily,  be  left  to 
the  husband,  upon  whom  rests  the  legal  duty  to  provide  for  his 
family,  as  well  as  for  himself.  The  wife  can  not  legally  refuse 
to  accompany  him  in  a  change  of  domicile  unless  such  a 
change  is  plainly  unreasonable.  See  Keech  v.  Keech,  L.  R. 
I,  P.  &  D.  641;  Hair  v.  Hair,  lo  Rich.  Eq.  (S.  C.)  163; 
Hardenburgh  v.  Hardenburgh,  14  Cal.  654. 

There  is  nothing  in  the  present  case  to  show  a  legal  excuse 
for  the  wife's  refusal.  There  was  nothing  very  difficult  m  the 
distance,  or  in  the  time  required  for  the  journey,  or  in  the 
discomfort  attending  it.  The  removal  from  the  old  home  to 
the  new  one  would  have  involved  no  change  of  race  or 
language  in  the  wife's  companions.  It  included  departure 
from  lier  native  land  and  separation  from  the  friends  of  her 
youth.  But  these  are  no  more  than  common  experiences  nowa- 
days. In  these  years  of  emigration,  to  hold  that  a  wife  ought 
not  to  be  required  to  accompany  her  husband  from  England 
to  America,  if  his  interest  and  those  of  his  family  would  be 
greatly  promoted  by  such  a  change,  would  impede  social 
progress  and  individual  advancement. 

\\'e  are  of  opinion  that  the  ruling  as  matter  of  law  tliat  the 
libelee  was  not  guilty  of  desertion  was  erroneous.  In  our 
opinion  the  evidence  would  warrant  a  finding  tliat,_  without 
other  excuse  than  her  disinclination  to  leave  her  native  land, 
she  willfully  refused  to  accomimny  her  husband  to  America 
when  his  interests  and  those  of  his  family  required  such  a 
change  of  domicile,  and  that  she  persisted  in  this  refusal. 
This  would  justify  a  finding  of  utter  desertion  on  her  part. 

The  alleged  desertion  referred  to  in  Bishop  v.  Bishop,  30 
Pa.  412,  occurred  nearly  fifty  years  ago,  when  conditions  were 
very  different  from  those  at  present,  and  the  decision  was  made 
to  depend  upon  a  question  of  jurisdiction  under  the  statutes 
of  Pennsylvania. 

Decree   for   libelant. 


1/4  DIVORCE. 

DE  VRY  V.  DE  VRY. 

(Okla.)    i48Pac.  840.   (1915.) 

Action  by  John  V.  De  Vry  against  Lillian  De  Vry  for 
divorce  on  the  ground  of  abandonment.  Cross-petition  by 
defendant  asking  for  a  divorce  on  the  same  ground. 

The  parties  ^vere  married  in  1909,  it  being  then  practically 
agreed  that  they  should  move  to  Oklahoma,  where  the  plain- 
tiff intended  to  practice  medicine.  After  the  marriage  they 
went  to  Oklahoma,  but  after  a  few  weeks  the  defendant,  who 
was  dissatisfied,  returned  to  her  former  home  in  Chicago  on 
a  visit.  While  there  she  insisted  that  plaintiff  come  to  Chicago 
to  locate.  He  did  so,  but  was  unsuccessful,  and  returned  to 
Oklahoma.  She  refused  to  return  to  him,  and  he  filed  an 
action  for  divorce  in  ]\Iay,  191 1.  After  the  suit  was  filed, 
but,  it  seems,  before  defendant  learned  of  it,  she  returned  to 
Oklahoma  and  offered  to  resume  matrimonial  relations  with 
plaintiff.  He  told  her  that  he  had  brought  suit  for  divorce 
and  refused  to  receive  her.  Thereupon  she  filed  her  cross- 
petition  in  the  suit.  Judgment  for  defendant  for  divorce  and 
alimony.  Modified  by  striking  out  the  provision  for  alimony 
and  affirmed. 

DEVEREUX,  C:  (after  stating  the  facts).  The  con- 
tention of  the  plaintiff  in  error  is  that  the  husband  has  the 
right  to  choose  the  domicile  of  the  family,  and  it  is  the  duty 
of  the  wife  to  accompany  and  live  with  him  in  the  home  so 
selected,  unless  there  be  good  reason  for  her  refusing  to  do 
so,  and  that  a  failure  of  the  wife  so  to  do  is  abandonment, 
authorizing  a  divorce.  There  can  be  no  question  that  this  state- 
ment of  the  law  Is  correct.  Buell  v.  Buell,  42  Wash.  277, 
84  Pac.  821  ;  Franklin  v.  Franklin,  190  Mass.  349,  'jj  N.  E. 
48,  4  L.  R.  A.  (N.  S.)  145,  5  Ann.  Cas.  851  ;  14  Cyc.  612. 

But  the  facts  in  the  case  at  bar  are  not  sufficient  to  apply 
this  rule.  It  appears  that,  before  the  wife  had  notice  of  the 
divorce  proceedings,  she  yielded  to  the  will  of  her  husband 
and  consented  to  live  with  him,  coming  to  Oklahoma  for  that 
purpose ;  and  the  trial  court  havinsr  found  the  Issues  in  favor 
of  the  defendant,  and  there  being  evidence  to  support  this 
finding,  it  can  not  be  disturbed  by  this  court.  In  Peretti  v. 
Peretti,  165  Cal.  717,  134  Pac.  322,  it  is  held.  In  an  action 
for  divorce  on  the  ground  of  abandonment,  that: 

"Where  the  party,  who  was  originally  the  deserter,  offers 
to  return,  the  fault  of  desertion  will  be  thrown  upon  the  other 
spouse,  if  the  offer  is  refused  provided  the  offer  to  return 


DE  VRY  V.  DE  MiY.  1 75 

be  made  in  good  faith  and  not  simply  to  create  a  ground  for 
divorce.  Wlietlier  an  offer  by  a  spouse  to  return,  after  hav- 
ing deserted  the  other,  was  made  in  good  faith,  is  a  question 
of  fact,  and  the  determination  of  the  [trial]  court  will  not  be 
disturbed  when  there  is  any  ground  to  support  it." 

This  case  is  directlv  in  point  with  the  case  at  bar.  The 
wife  undoubtedly  was  originally  in  fault  in  not  following  tlie 
husband  to  the  marriage  domicile  established  by  him.  The 
record  entirely  fails  to  show  any  good  reason  why  she  should 
not  live  in  Oklalioma;  but  on  her  offer  to  return,  which  the 
court  by  its  finding  in  her  favor  has  found  was  in  good  iz'th, 
tlie  husband  became  a  wrongdoer  himself  by  refusing  to  allow 
her  to  do  so. 

On  the  question  of  alimony,  the  court  below  allowed  $5Cmd 
as  permanent  alimony  and  an  attorney  fee  of  $146.  Under 
the  evidence  in  this  case,  we  think  this  allowance  of  alimony 
was  excessive.  The  parties  had  been  married  but  a  short  time 
and  there  is  no  evidence  that  anv  property  was  accumulated 
by  the  husband  through  the  assistance  of  the  wife,  or  that 
she  had  any  property  when  she  married  which  had  gone  to 
him.  His  income  was  In  cash  between  S.^o  and  $60  a  month, 
with  doubtful  accounts  of  about  as  much  more.  In  allowing 
a  gross  sum  of  $500  in  this  condition  of  the  husband's  finan- 
ces, we  think  the  court  erred.  After  this  appeal  was  taken 
to  this  court,  an  order  was  made  on  October  i,  1912,  requir- 
ing the  plaintiff  to  pay  into  court  the  sum  of  $20  a  month 
temporary  alimony  and  $100  attorney  fee.  Under  this  order, 
he  has  paid  into  court  the  sum  of  $835,  Under  all  of  the  cir- 
cumstances of  this  case,  considering  the  amount  which  the 
defendant  has  received  under  tlie  order  since  October  I,  1912, 
and  the  undisputed  financial  condition  of  the  plaintiff,  we  think 
the  judgment  for  alimony  should  be  set  aside. 

We  therefore  recommend  that  the  iudgment  be  modified 
by  striking  the  judgment  for  alimony  therefrom,  and,  as  thus 
modified,  the  judgment  below  be  affirmed. 

PER  CURIAM.    Adopted  in  whole. 


4.    Recrimination. 

PEASE  V.  PEASE. 

72  Wis.  136,  39  N.  W.  133.     C 1888.) 

Action  by  a  husband  for  a  divorce  on  the  ground  of  adultery. 
Defendant  in  her  answer  denied  the  adultery  and  asked  for 


1 76  DIVORCE. 

limited  divorce  on  the  ground  of  cruel  and  inhuman  treatment. 
Both  parties  found  guilty  and  divorce  denied  to  both.  Affirmed. 

COLE,  C.  J. :  The  plaintiff  and  appellant  brought  this 
action  for  a  divorce  from  the  bonds  of  matrimony  on  the 
ground  of  adultery  committed  by  the  defendant.  The  wife 
denied  the  charge  of  adultery  in  her  answer,  and  by  way  of 
recrimination,  defense,  or  bar  to  the  plaintiff's  action,  asked 
for  a  limited  divorce  from  the  husband  on  the  ground  of  cruel 
and  inhuman  treatment  on  his  part.  On  the  trial  of  the  issue 
of  adultery  the  jury  found  against  the  defendant,  and  the 
court  found  the  plaintiff  guilty  of  cruel  and  inhuman  treat- 
ment of  the  defendant,  and  held  that  neither  party  was  en- 
titled to  a  decree  of  divorce.  The  sole  question  before  us 
on  this  appeal  is  the  correctness  of  this  decision. 

Our  statute  makes  adultery  and  cruel  and  inhuman  treat- 
ment of  the  wife  by  the  husband  equally  grounds  of  divorce. 
Section  2356.  The  statute  places  them  upon  the  same  ground, 
attended  by  the  same  legal  consequences.  The  cruelty  com- 
plained of  and  proved  were  acts  of  personal  violence  on  the  part 
of  the  husband;  his  striking  her  in  one  instance  a  severe  blow 
in  the  face  with  his  fist  while  she  was  lying  in  bed,  which 
blow  caused  a  wound  that  bled  freely,  and  left  a  bruise  for 
several  days  upon  the  face.  The  circuit  court  also  found  other 
instances  proved  of  violent  conduct  on  the  plaintiff's  part 
towards  his  wife,  which  in  some  cases  were  mitigated  to  some 
extent  by  her  improper  and  exasperating  behavior.  The  evi- 
dence is  not  before  us,  but  we  must  presume  it  fully  sustained 
the  finding  of  the  court  on  the  facts.  So,  the  simple  question 
presented  is,  where  it  is  shown  that  each  party  has  been  guilty 
of  an  offense  which  the  statute  has  made  a  ground  for  divorce 
in  favor  of  the  other,  will  the  court  interfere  and  grant  re- 
lief to  either  offending  party?  We  do  not  perceive  upon  what 
logical  principle  the  court  could  grant  redress  to  the  husband 
for  the  adultery  of  the  wife  when  he  himself  has  been  guilty 
of  an  offense  which  would  give  her  a  right  to  an  absolute  di- 
vorce were  she  witliout  fault.  Both  parties  have  violated  the 
marriage  contract,  and  can  the  court  look  with  more  favor 
upon  the  breach  of  one  than  the  other?  It  is  an  unquestioned 
principle  that  where  one  party  is  shown  to  have  been  guilty  of 
adultery  such  party  can  not  have  a  divorce  for  the  adultery 
committed  by  the  other.  Smith  v.  Smith,  19  Wis.  *522.  _  Mr. 
Bishop  says  there  is  an  entire  concurrence  of  iudicial  opinion 
upon  that  point  both  in  England  and  in  this  country,  and  that 
it  makes  no  difference  which  was  the  earlier  offense :  nor  even 


PEASE  V.  PEASE.  1 77 

that  the  plaintiff's  act  followed  a  separation  which  took  place 
on  the  discovery  of  tlie  adultery  of  the  defendant,     2  Bish. 
Mar.  &  Div.  §  80.     In  the  forum  of  conscience,  adultery  of 
the  wife  may  be  rcj^ardcd  as  a  more  heinous  violation  of  social 
duty  than  cruelty  by  the  husband.     But  the  statute  treats  them 
as  of  the  same  nature  and  same  grade  of  delinquency.     It  is 
true,  the  cruelty  of  the  husband  does  not  justify  the  adultery 
of  the  wife;  neither  would  his  own  adultery, — but  still  the 
latter  has  ever  been  held  a  bar.    And  where  both  adultery  and 
cruelty  are  made  equal  offences,  attended  with  the  same  legal 
consequences,  how  can  the  court,  in  the  mutual  controversy, 
discriminate  between  the  two,  and  give  one  the  preference 
over  the  other  ?     It  seems  to  us  that,  as  the  law  has  given  the 
same  effect  to  the  one  offense  as  the  other,  the  court  should 
not  attempt  to  distinguish  between  them,  but  treat  them  alike 
and  hold  one  a  bar  to  the  other.     The  following  authorities 
enforce  this  view  of  the  law  where  the  divorce  law  is  like  our 
own :  Hall  v.  Hall,  4  Allen  39 ;  Handy  v.  Handy,  124  Mass.  394 ; 
Nagel  V.  Nagel,  12  Mo.  53;  Shackett  v.  Shackett,  49  Vt.  195; 
Conant  v. Conant,  10  Cal.  249 ;  2  Bish.  I\Iar.  &  Div.  §§  78-87.  See 
also,  Adams  v.  Adams,  17  N.  J.  Eq.  325 ;  Yeatman  v.  Yeatman, 
L.  R.  I  Prob.  &  Div.  489;  Lempriere  v.  Lempriere,  Id.  569. 
We  therefore  think  the  circuit  court  was  right  in  holding  upon 
the  facts  that  neither  party  was  entitled  to  a  divorce,  because 
each  was  guilty  of  an  offense  to  which  the  law  attached  the 
same  legal  consequences.     But  the  plaintiff's  counsel  contends 
that  under  section  2360,  which  provides  that  in  an  action  for 
divorce  on  the  ground  of  adultery,  although  the  fact  of  adultery 
be  established,  the  court  may  deny  a  divorce   (i)   when  tlie 
offense   shall   appear   to  have   been   committed   by   the   pro- 
curement or  with  the  connivance  of  the  plaintiff;   (2)^  \yhere 
the  adultery  charged  shall  have  been  forgiven  by  the  injured 
party,  and  such  forgiveness  be  proved  by  express  proof  or  by 
tlie  voluntary  cohabitation  of  the  parties  with  knowledge  of 
tlie  offense;  (3)  when  there  shall  have  been  no  express  for- 
giveness and  voluntary  cohabitation  of  the  parties,   but  the 
action  shall  not  have  been  brought  within  three  years  after  the 
discovery  by  the  plaintiff  of  the  offense   charged.      As  the 
adultery,  he'says,  was  found  in  the  case,  but  none  of  the  facts 
set  forth  in  the  above  three  subdivisions  were  found  to  exist, 
tlierefore  the  divorce  should  have  been  granted.    This  provision 
is  declaratory  of  the  common  law,  and  gives  the  trial  court 
discretion  to  refuse  a  divorce  for  adultcrv  where  certain  things 
were  proved  or  shown  to  exist.     It  might  be  claimed,  in  view 
12 — Cases  Dom.  Rel. 


178  DR'ORCE. 

of  the  statutory  provisions,  tliat  the  court  had  no  discretion 
in  the  matter  where  the  adultery  was  estabhshed,  but  was 
absolutely  bound  to  grant  the  divorce,  tliough  there  had  been 
connivance  of  the  parties,  or  condonation,  or  the  injured  party 
had  unduly  delayed  bringing  the  action  after  a  discovery  of 
tlie  offense.  To  remove  all  doubt  upon  that  point  the  provision 
was  enacted.  It  was  not  intended  to  do  away  with  the  gen- 
eral principle  that  one  cannot  have  redress  for  a  breach  of 
the  marriage  contract  which  he  has  violated  by  committing 
a  like  offense  as  that  of  which  he  complains,  but  must  come  into 
court  with  clean  hands.  This  principle  still  pervades  our  law, 
and  must  be  recognized.  From  these  views  it  follows  that 
the  judgment  of  the  circuit  court  must  be  affirmed. 


5.    Conflict  of  Laws — Foreign  Divorces. 

LOKER  V.  GERALD. 

157  Mass.  42,  31  N.  E.  709,  16  L.  R.  A.  497,  34  Am.  St.  252. 

Cl8q2.) 

Writ  of  dower  by  Maggie  L.  Loker  claiming  as  the  widow 
of  William  Loker.  Defendant  Gerald,  tenant  in  possession, 
claimed  that  plaintiff  was  barred  by  a  divorce  obtained  by  Loker 
from  her  in  Colorado  and  introduced  a  copy  of  the  record 
of  the  divorce.  Plaintiff  denied  the  validity  of  the  divorce. 
The  court  directed  a  verdict  for  the  defendant.  Judgment 
on  the  verdict. 

FIELD,  C.  J.:  We  think  that  it  appears  that  the  divorce 
was  obtained  in  the  state  of  Colorado  in  accordance  with  the 
statutes  of  that  state,  and  that  the  service  of  process  on  the 
wife,  who  is  the  demandant  in  the  present  action,  was  also  in 
accordance  with  these  statutes.  The  report  recites  that  "it 
was  not  claimed  by  the  demandant  that  the  said  William  Loker 
went  to  Colorado  for  the  purpose  of  procuring  a  divorce," 
and  it  must  be  taken  that  he  was  a  bona  fide  resident  of  that 
state  for  more  than  a  vear  before  his  suit  for  divorce  was 
brought,  which  is  the  time  required  by  the  statutes  of  Colo- 
rado, when  the  cause  of  divorce  occurred  in  another  state. 

A  copy  of  the  bill  of  complaint  for  divorce  and  of  the  sum- 


LOKER  V.  GERALD.  1 79 

mons  was  served  on  the  wife  in  Massachusetts,  where  she 
lived;  and  the  causes  of  divorce  set  forth  by  the  bill  were 
desertion  for  more  than  a  year,  and  adultery;  and  the  court, 
after  hearing  evidence,  decreed  a  divorce  from  the  bonds  of 
matrimony  for  desertion.  Great  pains  were  taken  to  give  the 
wife  notice  and  an  op])ortunity  to  be  heard. 

The  parties  were  married  in  Alassachusetts,  and  lived  there 
as  husband  and  wife,  but  tlie  husband  removed  to  Colorado, 
and  we  infer  that  the  wife  did  not,  but  remained  in  ]\Iassa- 
chusetts,  and  we  infer  that  the  desertion  on  account  of  which 
tlie  divorce  was  granted  began  in  Massachusetts.  The  real 
contention  is  that  as  the  wife  was  never  domiciled  in  Colorado, 
and  was  never  served  with  process  in  tliat  state,  the  court  had 
no  jurisdiction  over  her  to  dissolve  the  marriage. 

It  must  be  noticed  that,  by  our  statutes,  desertion,  con- 
tinued for  three  years,  and  adultery,  are  causes  of  divorce ; 
and  that  the  statutes  authorize  divorces  for  causes  occurring 
in  other  states,  even  when  the  parties  were  not  married  in  this 
commonwealth  and  were  not  inhabitants  of  the  commonwealth 
at  the  time  of  tli^  marriage,  provided  the  libelant  has  resided 
in  the  commonwealth  for  five  years  next  preceding  the  filing  of 
tlie  libel,  and  did  not  remove  into  the  commonwealth  for  the 
purpose  of  obtaining  a  divorce.  Pub.  St.  ch.  146,  §  5.  In 
practice  here,  divorces  are  often  granted  in  cases  in  which  the 
libelee  has  never  resided  witliin  the  commonwealtli,  upon 
service  made  by  publication,  and  by  a  registered  letter  sent  to 
the  libelee,  or  notice  served  upon  him  or  her,  in  another  state, 
as  the  court  may  direct.  Pub.  St.  ch.  146,  §§  9,  10.  Pub,  St. 
ch.  146,  §  41,  provides  that  "a  divorce  decreed  in  anotlier  state 
or  country,  according  to  the  laws  thereof,  and  by  a  court  hav- 
ing jurisdiction  of  the  cause,  and  of  both  the  parties,  shall  be 
valid  and  effectual  in  this  commonwealth,"  except  in  certain 
cases  not  material  to  the  present  inquiry. 

The  various  decisions  of  the  courts  of  different  states  and 
countries  on  the  question  of  the  jurisdiction  of  a  court  to 
dissolve  the  bonds  of  matrimony,  when  only  the  libelant  is 
domiciled  within  the  state  or  county  to  which  the  court  be- 
longs, and  the  effect  to  be  given  to  a  decree  of  divorce  in  other 
states  or  counties,  if  the  court  takes  jurisdiction,  and  enters 
a  decree,  are  well  known,  and  they  are  fully  considered  in 
2  Rish.  Mar.  &  Div.  chaps.  2-6. 

It  is  sufficient  for  the  present  case  to  say  that  by  our  de- 
cisions, it  not  appearing  that  the  wife  separated  from  her 
husband  for  justifiable  cause,  her  domicile  followed  his,  and 
that,  therefore,  for  tlie  purpose  of  divorce,  the  court  in  Colo- 


l8o  DIVORCE. 

rado  had  jurisdiction  of  both  the  parties,  within  the  meaning 
of  the  statute.  The  fact  that  our  courts  grant  divorces  under 
somewhat  similar  circumstances  is  a  reason  why,  as  a  matter 
of  comit}^  we  should  recognize  the  validity  of  this  divorce. 
Burlen  v.  Shannon,  115  Alass.  438.  We  are  not  now  required 
to  consider  whether  the  rule  of  law  would  not  be  the  sarne, 
independently  of  the  legal  fiction  that  the  domicile  of  the  wife 
follows  tliat  of  the  husband.  The  decision  in  Cummington  v. 
Belchertown,  149  IMass.  223,  21  N.  E.  435,  was  upon  the  effect 
of  a  decree  annulling  the  marriage  ab  initio,  and  the  court  ex- 
pressed no  opinion  upon  the  effect  of  a  decree  of  divorce  made 
under  the  circumstances  tliere  stated. 
Judgment  on  the  verdict. 


BELL  V.  BELL. 

181  U.  S.  175,  45  L.  Ed.  804,  21  Sup.  Ct.  551.    (1901.) 

Suit  in  the  Supreme  Court  of  New  York  by  Mary  G.  Bell 
against  Frederick  A.  Bell  for  divorce.  Defendant  pleaded  a 
divorce  granted  to  him  in  Pennsylvania.  Judgment  for  plain- 
tiff". Affirmed  by  Court  of  Appeals  (157  N.  Y.  719).  Writ 
of  error  from  the  Supreme  Court  of  tlie  United  States. 
Affirmed. 

Statement  by  Mr.  Justice  Gray: 

This  was  an  action  brought  December  22,  1894,  in^  the 
supreme  court  for  the  county  of  Erie  and  state  of  New  York, 
by  Alary  G.  Bell  against  Frederick  A.  Bell,  for  a  divorce  from 
the  bond  of  matrimony,  for  his  adultery  at  Buffalo,  in  the 
county  of  Erie,  in  April  and  IMay,  1890,  and  for  alimony. 

The  defendant  appeared  in  the  case,  and  pleaded  a  decree 
of  divorce  from  the  bond  of  matrimony,  obtained  by  him 
January  8,  1895,  in  the  court  of  common  pleas  for  Jefferson 
countv,  in  the  state  of  Pennsylvania,  for  her  desertion. 

The  plaintiff  replied,  denying  tliat  the  court  in  Pennsylvania 
had  any  jurisdiction  to  grant  the  decree,  and  alleging  that  no 
process  In  the  suit  there  was  ever  served  on  her,  and  that 
neither  she  nor  her  husband  ever  was  or  became  a  resident 
or  citizen  of  the  state  of  Pennsylvania. 

The  present  action  was  referred  to  a  referee,  who  found 
the  following,  facts :  The  parties  were  married  at  Blooming- 
ton,  in  the  state  of  Illinois,  on  January  24,  1878,  and  there- 


BELL  V.   BELL  l8l 

after  lived  together  as  husband  and  wife  at  Rochester,  and 
afterwards  at  Buffalo,  in  the  state  of  New  York.  In  August, 
1882,  the  plaintiff  went  to  Bloomington  on  a  visit  to  her  mother. 
In  her  absence,  the  defendant  i)acked  up  her  wearing  apparel 
and  other  property  in  trunks,  and  had  them  put  in  tlie  stable, 
preparatory  to  sending  them  to  her  at  Bloomington.  In  Sep- 
tember, 1882,  the  plaintiff,  accompanied  by  her  mother,  re- 
turned to  the  defendant's  house,  stayed  there  three  or  four 
days,  and  then  left,  with  her  mother,  for  Bloomington;  and 
since  then  the  plaintiff  and  defendant  have  not  lived  to- 
gether, and  she  has  always  claimed  her  residence  as  being 
at  Buffalo. 

On  January  8,  1895,  the  court  of  common  pleas  of  Jeffer- 
son county,  in  the  state  of  Pennsylvania,  granted  to  the  hus- 
band, on  his  petition  filed  April  9,  1894,  alleging  that  he  was 
and  had  been  for  a  year  a  citizen  of  that  state  and  a  resident 
of  that  county,  a  decree  of  di\'orce  from  the  bond  of  matrimony 
for  her  desertion,  which,  under  the  laws  of  Pennsylvania,  was 
a  ground  for  dissolving  marriage.  The  subpoena  in  that 
action  was  not  served  upon  the  wife,  but  she  was  served  by 
publication  according  to  the  laws  of  Pennsylvania,  and  he 
received  through  the  mail  a  copy  of  the  subpoena  and  of  a 
notice  of  tlie  examiner  that  he  would  attend  to  the  duties  of 
his  appointment  on  December  14,  1894,  at  his  office  in  Brook- 
ville  in  Jefferson  County.  She  did  not  appear  in  person  or  by 
attorney,  and  judgment  was  rendered  against  her  by  default. 

At  the  time  of  the  beginning  of  that  action  and  of  the 
rendering  of  that  decree  the  wife  was  a  resident  of  the  state 
of  New  York,  and  the  husband  was  not  a  bona  ffde  resident 
of  the  state  of  Pennsylania.  On  January  31,  1894,  the  husband 
and  his  sister  presented  a  petition,  upon  oath,  to  the  surrogate 
of  Erie  county,  for  the  probate  of  the  will  of  their  mother, 
in  which  he  was  described  as  residing  at  Buffalo,  in  the  county 
of  Erie  and  state  of  New  York,  No  evidence  was  offered  to 
show  that  he  actually  changed  his  domicile  from  New  York 
to  Pennsylvania. 

The  referee  also  found  the  husband's  adultery  as  alleged, 
and  reported  that  the  wife  should  have  judgment  for  a  divorce 
from  the  bond  of  matrimony,  and  for  alimony  in  the  sum  of 
$3,000  during  her  life,  from  the  commencement  of  this  action, 
payable  quarterly,  and  for  costs.  The  court  confirmed  his 
report,  and  rendered  judgment  accordingly  for  a  divorce,  ali- 
mony, and  costs.  That  judgment  was  affirmed  by  the  gen- 
eral term  and  by  the  court  of  appeals.  4  App.  Div.  (N.  Y.) 
527,  40  N.  Y.  S.'443,  157  N.  Y.  719,  53  N.  E.  1123. 


1 82  DIVORCE. 

The  defendant  sued  out  this  writ  of  error  upon  the  ground 
that  the  judgment  below  did  not  give  full  faith  and  credit  to 
the  judgment  in  Pennsylvania,  as  required  by  the  Constitution 
and  laws  of  tlie  United  States. 

After  the  argument  of  tlie  case  in  this  court,  the  defendant 
died;  and  the  plaintiff  moved  that  judgment  be  entered  nunc 
pro  tunc. 

Mr.  Justice  Gray,  after  stating  the  case  as  above,  delivered 
the  opinion  of  tlie  court : 

The  question  in  this  case  is  of  the  validity  of  the  divorce 
obtained  by  the  husband  in  Pennsylvania.     No  valid  divorce 
from  the  bond  of  matrimony  can  be  decreed  on  constructive 
service  by  the  courts  of  a  state  in  which  neither  party  is  dom- 
iciled.  And  by  the  law  of  Pennsylvania  every  petitioner  for  a 
divorce  must  have  had  a  bona  fide  residence  within  the  state 
for  one  year  next  before  the  filing  of  the  petition.    Penn.  Stats. 
March  13,  1815,  ch.  109,  §  11;  IMay  8,  1854,  ch.  629,  §  2; 
Hollister  v.  Hollister,  6  Pa.  449.  The  recital  in  the  proceedings 
in  Pennsylvania  of  the  facts  necessary  to  show  jurisdiction 
may  be  contradicted.  Thompson  v.  Whitman,  18  Wall.  457,  21 
L.  ed.  897.   The  referee  in  this  case  has  not  only  found  gen- 
erally that  at  the  time  of  tliose  proceedings  the  wife  was  a 
resident  of  the  state  of  New  York,  and  the  husband  was  not  a 
bona  fide  resident  of  Pennsylvania,  but  has  also  found  that  on 
January  31,  1894,  some  ten  weeks  before  he  filed  his  petition 
in  Pennsylvania,  he  described  himself,  under  oath,  in  a  petition 
for  the  probate  of  a  will  in  Erie  County,  in  the  state  of  New 
York,  as  a  resident  of  that  county,  and  that  no  evidence  was 
offered  that  he  actually  changed  his  domicile  from  New  York 
to  Pennsylvania.     Upon  this  record,  therefore,  the  court  in 
Pennsylvania  had  no  jurisdiction  of  the  husband's  suit  for  di- 
vorce, because  neither  party  had  a  domicile  in  Pennsylvania,  and 
the  decree  of  divorce  was  entitled  to  no  faith  and  credit  in  New 
York  or  in  any  other  state.     Leith  v.  Leith  (1859),  39  N.  H. 
20;  People  V.  Dawell  (1872),  25  Mich.  247;  Sewall  v.  Sewall 
(1877),  122  Mass.  156,  23  Am.  Rep.  299;  Litowitch  v.  Lito- 
witch  (1878),  19  Kans.  451,  27  Am.  Rep.  145;  Van  Fossen  v. 
State  (1881),  37  Ohio  St.  317,  41  Am.  Rep.  507;  Gregory  v. 
Gregorv  (1886),  78  Maine  187,  57  Am.  Rep.  792;  Dunham  v. 
Dunham  (1896),  162  111.  589,  35  L.  R.  A.  70,  44  N.  E.  841  ; 
Thelen  v.  Thelen  (1899)  75  Minn.  433,  78  N.  W.  108;  Ma- 
gowan  v.  ^lagowan  (1899),  57  N.  J.  Eq.  322,  42  Atl.  330. 

The  death  of  the  husband,  since  this  case  was  argued,  of  it- 
self terminates  the  marriage  relation,  and,  if  nothing  more  had 
been  involved  in  the  judgment  below,  would  have  abated  the 


THOMPSON'  V.  THOMPSON.  183 

writ  of  error,  because  tlie  whole  subject  of  litigation  would  be 
at  an  end,  and  no  power  can  dissolve  a  marriage  which  has 
already  been  dissolved  by  act  of  God.  Stanhope  v.  Stanhope 
(iS86),L.  R.  II  Prob.  Div.  103,  iii.  But  the  judgment  below, 
rendered  after  appearance  and  answer  of  the  husband,  is  not 
only  for  a  divorce,  but  for  a  large  sum  of  alimony,  and  for 
costs.  The  wife's  rights  to  such  alimony  and  costs,  though  de- 
pending on  the  same  grounds  as  the  divorce,  are  not  impaired 
by  the  husband's  death,  should  not  be  afifected  by  tlie  delay  in 
entering  judgment  here  while  this  court  has  held  tlie  case  under 
advisement,  and  may  be  preserved  by  entering  judgment  nunc 
pro  tunc  as  of  the  day  when  it  was  argued.  Downer  v.  Howard 
(187S),  44  Wis.  82;  Francis  v.  Francis  (1879),  31  Gratt.  283; 
Danforth  v.  Danforth  (1884),  iii  111.  236;  Mitchell  v.  Over- 
man (1880),  103  U.  S.  62,  26  L.  ed.  369. 

Judgment  affirmed,  nunc  pro  tunc,  as  of  April  26,  1900. 


THOMPSON  V.  THOAIPSOX. 
226  U.  S.  51,  33  Sup.  Ct.  129.    (1913.) 

Suit  by  Jessie  E.  Thompson  against  Charles  X.  Thompson 
for  maintenance  brought  in  the  Supreme  Court  of  the  District 
of  Columbia.  The  defendant  set  up  a  decree  of  divorce  ren- 
dered in  his  favor  against  tlie  plaintiff  in  a  Virginia  court. 
There  was  a  decree  for  tlie  plaintiff  v/liich  was  reversed  by  the 
Court  of  Appeals  of  the  District,  from  which  latter  decree  an 
appeal  was  taken  to  the  United  States  Supreme  Court.  Affirmed. 

Mr,  Justice  Pitney  delivered  the  opinion  of  the  court: 
This  is  an  appeal  from  a  decree  of  the  Court  of  Appeals  of 
tlie  District  of  Columbia,  reversing  a  decree  of  the  Supreme 
Court  of  the  District  in  favor  of  the  wife  in  a  suit  for  mainte- 
nance, brought  under  §  9S0  of  the  District  Code  (act  of  ^larch 
3,  1901,  31  Stat,  at  L.  1346,  ch.  854).  The  bill  of  complaint  was 
filed  July  29,  1907,  and  charged  the  husband  with  failing  and 
refusing  to  maintain  the  complainant,  and  with  cruel  treatment 
of  such  character  as  to  compel  her  to  leave  him.  Upon  tlie 
filing  of  the  bill  a  subpoena  to  answer  was  issued  and  returned 
"not  found,"  whereupon  alias  and  pluries  writs  were  success- 
ively issued  and  returned  until  November  18,  1907,  when  tlie 
husband  was  served  witli  process.    ]\Ieanwhile,  and  on  Septem- 


184  DIVORCE. 

ber  3,  1907,  he  brought  suit  against  the  wife  in  the  circuit  court 
of  Loudoun  County,  Virginia,  for  divorce  a  mensa  et  thoro, 
upon  the  ground  that  on  June  13,  1907,  the  wife  wilfully  aban- 
doned his  bed  and  board  and  deserted  him  without  cause,  and 
that  notwithstanding  his  repeated  entreaties  and  endeavors  to 
induce  her  to  return,  she  had  refused  to  do  so.   _An  order  of 
publication  having  been  made  and  published,  the  Virginia  court, 
on  October  19,  1907,  made  a  decree  granting  to  the  husband  a 
divorce  a  mensa  et  tlioro.     He  thereafter,  on  being  served  as 
already  mentioned  with  process  in  the  wife's  suit,  filed  a  plea 
setting  up  the  Virginia  decree  and  the  proceedings  upon  which 
it  was  rendered,  as  a  bar  to  her  action.  This  plea  was,  on  hear- 
ing, overruled,  the  husband  being  allowed  time  in  which  to 
answer  the  bill.     He  answered,  denying  tlie  wife's  charges  of 
cruelty,  and  setting  up  other  matters  pertaining  to  the  merits, 
and  also  averred  that  his  domicil,  as  well  as  the  matrimonial 
domicil  of  the  parties,  was  in  Loudoun  County,  Virginia,  and 
again  pleaded  tlie  Virginia  proceedings  and  decree  as  a  bar  to 
the  wife's  suit.  The  Supreme  Court  of  the  District,  upon  final 
hearing,  held  the  Virginia  divorce  to  be  invalid,  and  made  a 
decree  awarding  to  the  wife  custody  of  an  infant  child  born 
to  the  parties  during  the  pendency  of  the  proceedings,  and  re- 
quiring the  husband  to  pay  to  the  wife  $75  per  month  for  the 
maintenance  of  herself  and  the  child,  to  forthwith  pay  to  her 
the  sum  of  $500  for  counsel  fees,  and  also  to  pay  the  costs  of 
suit  to  be  taxed.  From  this  decree  the  husband  appealed  to  the 
court  of  appeals  of  the  District,  which  court  reversed  the  decree 
and  remanded  the  cause,  with  directions  to  enter  an  order  va- 
cating the  decree  and  dismissing  the  bill.     35  App.  D.  C.  14. 

[Here  the  court  considered  the  question  of  its  jurisdiction 
of  the  appeal,  and  after  holding  that  it  had  jurisdiction,  con- 
tinued:] , 

The  next  question  is  whether  the  court  of  appeals  was  right 
in  holding  that  the  Supreme  Court  of  the  District  erred  in  re- 
fusing to  give  credit  to  the  Virginia  decree. 

Article  4,  §  i,  of  the  Constitution,  declares  that  "full  faith 
and  credit  shall  be  given  in  each  state  to  the  public  acts,  rec- 
ords, and  judicial  proceedings  of  every  other  state.  And  the 
Congress  may,  by  general  laws,  prescribe  the  manner  in  which 
such  acts,  records,  and  proceedings  shall  be  proved,  and  the 
effect  thereof."  By  §  905,  Rev.  Stat.  (U.  S.  Comp.  Stat.  1901, 
p.  677),  the  mode  in  which  such  acts,  records,  and  proceedings 
are  to  be  proved  was  prescribed ;  and  it  was  enacted  that  "the 
said  records  and  judicial  proceedings,  so  authenticated,  shall 
have  such  faith  and  credit  given  to  them  in  every  court  within 


THOMPSON  V.  TnOMPSON.  185 

« 

the  United  States  as  they  have  by  law  or  usage  in  the  courts  of 
the  state  from  which  they  are  taken."  This  latter  clause  finds 
its  origin  in  the  first  act  passed  by  Congress  to  carry  into  effect 
the  constitutional  mandate  (act  of  Alay  26,  1790,  ch.  11,  i  Stat, 
at  L.  122,  U.  S.  Comp.  Stat.  1901,  p.  677)  ;  and,  in  an  early 
case,  it  was  held  that  the  words  "every  court  within  the  United 
States"  include  the  courts  of  the  District  of  Columbia,  and 
require  those  courts  to  give  full  faith  and  credit  to  the  judicial 
proceedings  of  the  several  states  when  properly  authenticated. 
Mills  V.  Duryee,  7  Cranch  (U.  S.)  484,  485,  3  L.  ed.  413. 

But  it  is  established  that  the  full  faith  and  credit  clause,  and 
the  statutes  enacted  thereunder,  do  not  apply  to  judgments  ren- 
dered by  a  court  having  no  jurisdiction  of  the  parties  or  sub- 
ject-matter, or  of  the  res  in  proceedings  in  rem.  D'Arcy  v. 
Ketchum,  11  How.  (U.S.)  165,  13  L.  ed.  648;  Thompson  v. 
Whitman,  18  Wall.  (U.S.)  457,  21  L.  ed.  897;  Reynolds  v. 
Stockton,  140  U.  S.  254,  35  L.  ed.  464,  11  Sup.  Ct.  Rep.  773; 
Bigelow  V.  Old  Dominion  Copper  ]\Iin.  &  S.  Co.,  225  U.  S. 
Ill,  134,  56  L.  ed.  1009,  1024,  32  Sup.  Ct.  641. 

This  subject,  in  its  relation  to  actions  for  divorce,  has  been 
most  exhaustively  considered  by  this  court  in  two  recent  cases : 
Atherton  v.  Atherton,  181  U.  S.  155,  45  L.  ed.  794,  21  Sup.  Ct. 
544;  Haddock  v.  Haddock,  201  U.  S.  562,  50  L.  ed.  867,  26 
Sup.  Ct.  525,  5  Ann.  Cas.  i.  In  the  Atherton  case  the  matri- 
monial domicil  was  in  Kentucky,  which  was  also  tlie  domicil 
of  the  husband.  The  wife  left  him  tliere  and  returned  to  the 
home  of  her  mother  in  the  state  of  New  York.  He  began  suit 
in  Kentucky  for  a  divorce  a  vinculo  matrimonii  because  of  her 
abandonment,  which  was  a  cause  of  divorce  by  the  laws  of 
Kentucky,  and  took  such  proceedings  to  give  her  notice  as  the 
laws  of  tliat  state  required,  which  included  mailing  of  notice  to 
the  postoffice  nearest  her  residence  in  New  York.  No  response 
or  appearance  having  been  made  by  her,  the  Kentucky  court 
proceeded  to  take  evidence  and  grant  to  the  husband  an  abso- 
lute decree  of  divorce.  It  was  held  tliat  this  decree  was  en- 
titled to  full  faith  and  credit  in  the  courts  of  New  York.  In 
the  Haddock  Case,  tlie  husband  and  wife  were  domiciled  in 
New  York,  and  the  husband  left  her  there,  and,  after  some 
years,  acquired  a  domicil  in  Connecticut,  and  obtained  in  that 
state,  and  in  accordance  with  its  laws,  a  judgment  of  divorce, 
based  upon  constructive,  and  not  actual,  service  of  process  on 
the  wife,  she  having  meanwhile  retained  her  domicil  in  New 
York,  and  having  made  no  appearance  in  the  action.  The  wife 
afterwards  sued  for  divorce  in  New  York,  and  obtained  per- 
sonal service  in  that  state  upon  the  husband.    The  New  York 


1 86  DIVORCE. 

court  refused  to  give  credit  to  the  Connecticut  judgment,  and 
tliis  court  held  that  there  was  no  violation  of  the  full  faith  and 
credit  clause  in  tlie  refusal,  and  this  because  there  was  not  at 
any  time  a  matrimonial  domicil  in  the  state  of  Connecticut,  and 
therefore  the  res — the  marriage  status — was  not  within  the 
sweep  of  the  judicial  power  of  that  state. 

In  the  present  case  it  appears  that  the  parties  were  married  in 
the  state  of  Virginia,  and  had  a  matrimonial  domicil  there, 
and  not  in  the  District  of  Columbia  or  elsewhere.  The  husband 
had  his  actual  domicil  in  that  state  at  all  times  until  and  after 
the  conclusion  of  the  litigation.  It  is  clear,  therefore,  under  tlie 
decision  in  the  Atherton  case  and  the  principles  upon  which  it 
rests,  that  the  State  of  Virginia  had  jurisdiction  over  the  mar- 
riage relation,  and  the  proper  courts  of  that  state  could  procede 
to  adjudicate  respecting  it  upon  grounds  recognized  by  the  laws 
of  that  state,  although  the  wife  had  left  the  jurisdiction  and 
could  not  be  reached  by  formal  process. 

But  in  order  to  make  a  divorce  valid,  even  when  granted  by 
the  courts  of  the  state  of  the  matrimonial  domicil,  there  must  be 
notice  to  the  defendant,  either  by  service  of  process,  or  (if  the 
defendant  be  a  nonresident)  by  such  publication  or  other  con- 
structive notice  as  is  required  by  the  law  of  the  state.  Cheely 
V.  Clayton,  i  lo  U.  S.  701,  28  L.  ed.  298,  4  Sup.  Ct.  328 ;  Atlier- 
ton  V.  Atherton,  181  U.  S.  155,  171,  172,  45  L.  ed.  794,  803,  21 
Sup.  Ct.  544.  In  Cheely  v.  Clayton,  because  the  notice  was 
published  against  the  defendant  without  making  such  effort  as 
the  local  law  required  to  serve  process  upon  her  within  the 
state,  this  court  held,  following  repeated  decisions  of  the  state 
court,  that  the  decree  of  divorce  was  wholly  void  for  want  of 
jurisdiction  in  the  court  that  granted  it ;  and  that  the  liberty 
conferred  by  the  local  statute  upon  a  defendant  on  whom  con- 
structive service  only  had  been  made,  to  apply  within  three 
years  to  set  the  decree  aside,  did  not  make  it  valid  when  the 
constructive  service  was  so  defective. 

The  Virginia  decree  now  in  question  is  attacked  for  want  of 
jurisdiction  on  the  ground  that  the  affidavit  used  as  a  basis  for 
the  order  of  publication  was  made  upon  information  and  belief, 
and  not  upon  personal  knowledge.  It  is  insisted  that  the  order 
was  therefore  unautliorized  and  all  proceedings  based  upon  it 

null  and  void.  . 

[Here  the  court  considered  the  question  of  the  suthciency  ot 
the  affidavit  under   the  Virginia  practice,   and  concluded  as 
follows :]    The  material  fact  upon  which,  according  to  the  laws 
of  that  state,  the  jurisdiction  of  the  Virginia  court  depended 
was  the  nonresidence  of  the  defendant.    The  Code  required 


THOMPSON  V.  THOMPSON.  iS/ 

(§  3230)  that  this  fact  should  appear  by  affidavit.  The  affidavit 
in  question  set  forth  tlie  fact;  the  circumstance  that  it  was 
averred  on  information  and  bcHef  affected  merely  the  degree 
of  proof.  In  the  absence  of  any  local  law  excluding  the  use 
of  such  an  affidavit,  the  decision  of  the  state  court  accepting  it 
as  legal  evidence  must  be  deemed  sufficient,  on  collateral  attack, 
to  confer  jurisdiction  in  that  court  over  the  subject-matter,  in 
accordance  with  local  laws. 

This  being  so,  it  is  clear  that  the  resulting  decree  is  entitled, 
under  the  act  of  Congress,  to  the  same  faith  and  credit  that  it 
would  have  by  law  or  usage  in  the  courts  of  Virginia.  As  the 
laws  of  that  state  provide  for  a  divorce  from  bed  and  board  for 
the  cause  of  desertion,  and  confer  jurisdiction  of  suits  for  di- 
vorce upon  tlie  circuit  courts  (Va.  Code,  §§  2257-2260,  2264, 
2266;  Bailey  v.  Bailey,  21  Gratt.  (Va.)  43;  Carr  v.  Carr,  2 
Gratt  (Va.)  168;  La'tliam  v.  Latham,  30  Gratt.  (Va.)  307); 
and  since  the  courts  of  \'irginia  hold  upon  general  principles 
that  alimony  has  its  origin  in  the  legal  obligation  of  the  hus- 
band to  maintain  his  wife,  and  that  although  this  is  her  right, 
she  may  by  her  conduct  forfeit  it,  and  where  she  is  the  offender, 
she  can  not  have  alimony  on  a  divorce  decreed  in  favor  of  the 
husband  (Harris  v.  Harris,  31  Gratt.  (Va.).!^),  it  is  plain 
that  such  a  decree  forecloses  any  right  of  the  wife,  to  have  ali- 
mony or  equivalent  maintenance  from  her  husband  under  the 
law  of  Virginia. 

From  this  it  results  that  the  Court  of  Appeals  of  the  District 
of  Columbia  correctly  held  that  the  Virginia  decree  barred  the 
wife's  action  for  maintenance  in  the  courts  of  this  District. 

Decree  affirmed. 


II.    PARENT  AND   CHILD. 

I.    Support  of  Child. 

VAN    VALKINBURGH  v.  WATSON. 

13  Johns.  (N.  Y.)  480,  7  Am.  Dec.  395.    (1816.) 

Action  by  Watson  against  Van  Valkinburgh  to  recover  for 
necessaries  furnished  hitter's  son.  On  the  trial  it  appeared  that 
the  son  came  to  Watson's  store  and  purchased  a  coat  for  hirn- 
self,  but  tliere  was  no  evidence  that  it  was  done  with  his 


l88  PARENT  AND  CHILD. 

fatlier's  consent.  Defendant  proved  that  his  son  lived  in  his 
family,  and  was  comfortably  and  decently  clothed  according  to 
his  circumstances.  Verdict  and  judgment  for  plaintiiif.  Reversed. 
PER  CURIA]\I :  A  parent  is  under  a  natural  obligation  to 
furnish  necessaries  for  his  infant  children;  and  if  the  parent 
neglect  that  duty,  any  other  person  who  supplies  such  neces- 
saries is  deemed  to  have  conferred  a  benefit  on  the  delinquent 
parent,  for  which  the  law  raises  an  implied  promise  to  pay  on 
the  part  of  tlie  parent.  But  what  is  actually  necessary  will 
depend  on  the  precise  situation  of  the  infant,  and  which  the 
party  giving  the  credit  must  be  acquainted  with  at  his  peril. 
(Simpson  v.  Robertson,  i  Esp.  17;  Ford  v.  Fothergill,  Id.  211.) 
In  the  case  of  Bainbridge  v.  Pickering,  2  W.  Bl.  1325,  Gould, 
J.,  says,  with  great  propriety:  "No  man  shall  take  upon  him 
to  dictate  to  a  parent  what  clothing  the  child  shall  wear,  at 
what  time  they  shall  be  purchased,  or  of  whom ;  all  that  must 
be  left  to  the  discretion  of  the  father  or  mother."  Where  the 
infant  is  sub  potestate  parentis  there  must  be  a  clear  and  pal- 
pable omission  of  duty,  in  that  respect,  on  the  part  of  the  par- 
ent, in  order  to  authorize  any  otlier  person  to  act  for,  and 
charge  the  expense  to  the  parent.  In  this  case  there  is  no 
ground  to  charge  the  father  with  any  neglect  of  duty,  in  pro- 
viding necessaries  for  his  child,  and  the  judgment  must  be 
reversed. 


PORTER  V.  POWELL. 

79  Iowa  151,  44  N.  W.  295,  7  L.  R.  A.  176,  18  Am.  St.  353. 

(1890.) 

Action  by  a  physician  to  recover  for  professional  services  to 
defendant's  daughter.  The  facts  appear  from  the  question  cer- 
tified by  the  trial  court  to  the  Supreme  Court  as  follows :  "Is  a 
father  legally  liable  to  a  physician  for  the  latter's  services  in 
professionally  treating  tlie  minor  daughter  of  said  father,  dan- 
gerously attacked  with  typhoid  fever,  who,  at  the  date  of  said 
treatment,  was  seventeen  years  of  age,  and  was  then,  and  had 
been,  residing  away  from  her  father's  house  for  three  years 
prior  to  the  rendering  of  said  services,  earjiings  and  controlling 
her  own  wages,  and  providing  herself  with  clothing,  at  a  place 
thirty  miles  distant  from  her  father's  place  of  residence,  the 
father  not  furnishing,  or  agreeing  with  his  daughter  to  furnish, 
her  with  auy  money,  or  means  of  support,  but  consenting  to 
her  absence  from  home;  the  said  professional  services  being 


PORTER  V.  rOWELL.  189 

rendered  at  the  request  of  the  said  minor  daughter,  but  were 
rendered  and  furnished  without  the  procurement,  knowledge, 
or  consent  of  the  defendant,  and  without  knowledge  of  the  sick- 
ness, until  demand  was  made  for  payment  of  said  services  by 
plaintiff,  the  attendance  of  plaintiff  being  from  day  to  day,  for 
a  period  of  twenty  days?" 

Judgment  for  plaintiff  and  defendant  appeals.  Affirmed. 

GIVEN,  J. :  I  Appellant's  contention  is  that  the  obligation  of 
parents  to  support  their  minor  children  is  only  a  moral  one,  and 
is  not  enforcible  in  the  absence  of  statute  or  promise;  tliat 
such  promise  is  not  to  be  implied  from  mere  moral  obligation, 
nor  from  the  statute  providing  for  the  reimbursement  of  the 
public;  and  that  an  omission  of  duty,  from  which  a  jury  may 
find  a  promise  by  implication  of  law,  must  be  a  legal  duty, 
capable  of  enforcement  by  process  of  law. 

At  first  glance,  this  view  of  the  law  seems  opposed  to  our 
natural  sense  of  justice;  yet  it  is  not  without  support  in  the 
authorities.  Such  is  held  to  be  the  law  in  New  Hampshire  and 
Vermont.  See  Kelley  v.  Davis,  49  N.  H.  187;  Farmington  v. 
Jones,  36  N.  H.  271 ;  Gordon  v.  Potter,  17  Vt,  348.  A  differ- 
ent doctrine  has  long  since  been  held  in  this  state.  In  Dawson 
V.  Dawson,  12  Iowa,  513,  this  court  held  that  "the  duty  of  tlie 
parent  to  maintain  his  offspring  until  they  attain  the  age  of 
maturity  is  a  perfect  common-law  duty."  In  Johnson  v. 
Barnes,  69  Iowa,  641,  29  N.  W.  759,  which  was  an  action  by 
the  mother,  who  had  been  divorced,  against  the  father,  for 
support  furnished  their  children,  the  court  say:  "As  there  was 
no  promise,  the  question  to  be  determined  is  whether  one  can 
be  inferred  in  favor  of  a  wife,  who  supports  her  child,  as 
against  her  husband,  who  has  without  cause  abandoned  her 
and  his  child.  The  obligation  of  parents  to  support  their  chil- 
dren at  common  law  is  somewhat  uncertain,  ill  defined,  and 
doubtful.  Indeed,  it  has  been  said  that  there  is  no  such  obliga- 
tion. *  *  *  -Q^-ii  ^ve  are  not  prepared  to  say  that  this  rule 
has  been  adopted  in  this  country,  and  it  should  be  conceded,  we 
think,  that,  independent  of  any  statute,  parents  are  bound  to 
contribute  to  the  support  of  their  minor  children,  and  that  such 
obligation  rests  mainly  on  the  father,  in  the  absence  of  a  stat- 
ute, if  of  sufficient  ability ;  and  that,  in  favor  of  a  third  person, 
who  supports  a  child,  a  promise  to  pay  may  and  should  be  in- 
ferred on  the  ground  of  the  legal  duty  imposed." 

In  Van  Valkcnburgh  v.  Watson,  13  Johns.  480,  it  is  said: 
"A  parent  is  under  a  natural  obligation  to  furnish  necessaries 
for  his  infant  children;  and,  if  the  parent  neglect  tliat  duty,  any 


ipO  PARENT  AND   CHILD. 

Other  person  who  supplies  such  necessaries  is  deemed  to  have 
conferred  a  benefit  on  the  dehnquent  parent,  for  which  the 
law  raises  an  implied  promise  to  pay  on  the  part  of  the  parent." 
In  5  Wait,  Act.  &  Def .  50,  the  author  says :  "The  duty  of  par- 
ents to  support,  protect  and  educate  their  offspring  is  founded 
upon  the  nature  of  the  connection  between  them.  It  is  not  only 
a  moral  obligation,  but  it  is  one  which  is  recognized  and  en- 
forced by  law.  *  *  *  Jn  order  to  hold  the  person  liable  in 
any  case  for  goods  furnished,  either  actual  authority  for  the 
purchase  must  be  shown,  or  circumstances  from  which  such 
authority  may  be  implied.  *  *  *  fhe  legal  obligation  of 
parents  in  respect  to  support,  extends  only  to  those  things  which 
are  necessary;  and  if  a  parent  refuses  or  neglects  to  provide 
such  things  for  his  child,  and  they  are  supplied  by  a  stranger, 
the  law  will  imply  a  promise  on  the  part  of  the  parent  to  pay 
for  them." 

Without  further  citation  of  autliorities,  we  announce  as  our 
conclusions  that  it  is  the  legal  as  well  as  moral  duty  of  parents 
to  furnish  necessary  support  to  their  children  during  minority ; 
that  a  parent  can  not  be  charged  for  necessaries  furnished  by  a 
stranger  for  his  minor  child,  except  upon  an  express  or  implied 
promise  to  pay  for  the  same;  and  that  such  promise  may  be 
inferred  on  the  grounds  of  the  legal  duty  imposed. 

2.  It  is  further  contended  on  behalf  of  appellant  that  the 
facts  certified  show  an  emancipation  of  his  daughter,  such  as 
to  relieve  him  from  liability  for  the  services  sued  for ;  that  sup- 
port and  services  are  reciprocal  duties,  and  if  one  is  withheld 
the  other  may  be  withdrawn.  Parents  are  entitled  to  the  care, 
custody,  control  and  services  of  their  children  during  minority. 
To  emancipate  is  to  release;  to  set  free.  It  need  not  be  evi- 
denced by  any  formal  or  required  act.  It  may  be  proved  by 
direct  proof  or  by  circumstances.  To  free  a  child,  for  all  the 
period  of  minority,  from  care,  custody,  control  and  service 
would  be  a  general  emancipation ;  but  to  free  him  from  only  a 
part  of  the  period  of  minority,  or  from  only  a  part  of  the  par- 
ent's rights,  would  be  limited.  The  parent,  having  the  several 
rights  of  care,  custody,  control  and  service  during  minority, 
may  surely  release  from  either  without  waiving  his  right  to  the 
other,  or  from  a  part  of  the  time  without  waiving  as  to  the 
whole.  A  father  frees  his  son  from  service.  That  does  not 
waive  the  right  to  care,  custody  and  control,  so  far  as  the  same 
can  be  exercised  consistently  with  the  right  waived.  He  frees 
his  son  of  18  from  service  for  one  year.  That  does  not  waive 
the  right  to  his  services  after  the  year;  and  if  the  waiver  has 
been  for  an  indefinite  period  the  parent  may  assert  his  right  to 


PORTER  V.  POWELL.  I9I 

the  services  of  the  child  at  any  time  within  the  period  of  minor- 
ity, subject  to  the  rights  of  those  who  have  contracted  with  the 
child  on  the  strength  of  the  waiver  as  to  services.  In  the  law  of 
contracts,  where  a  father  expressly  or  impliedly,  by  his  conduct, 
waives  his  right  generally  to  the  services  of  a  minor  child,  such 
child  is  said  to  be  emancipated.  The  child  may  sue,  under  such 
circumstances,  on  such  contracts,  as  are  made  with  him  for  his 
services.  Nightingale  v.  \\ithington,  15  ]\Iass.  272;  ]McCoy  v. 
Huffman,  8  Cow.  84 ;  Stiles  v.  Granville,  6  Cush.  458 ;  Schouler, 
Dom.  Rel.  §  267.  There  is  nothing  in  these  authorities,  nor  any 
reason,  against  the  view  expressed,  that  emancipation  may  be 
general  or  limited.  There  is  no  direct  evidence  as  to  the  purpose 
of  the  defendant  with  respect  to  his  daughter ;  but  we  are  to 
say,  from  the  circumstances  shown,  whether  they  evidence 
either  a  general  or  limited  emancipation. 

The  case  of  Everett  v.  Sherfey,  i  Iowa,  358,  is  relied  upon. 
That  was  an  action  to  recover  damages  of  the  defendant  for 
having  harbored  and  retained  the  plaintiff's  minor  son  in  his 
employ.  The  issues  and  circumstances  were  quite  different 
from  those  certified  in  this  case.  The  court  say:  "There 
could  be  no  such  harboring  as  would  render  the  defendant 
liable  to  the  father  in  this  action,  if  tlie  son  was  in  truth  eman- 
cipated, and,  if  the  son  was  not  emancipated,  it  will  still  be  a 
question  whether  there  was  such  harboring  as  renders  the  de- 
fendant liable.  By  'emancipation,'  in  this  connection,  w^e  un- 
derstand such  act  of  the  father  as  sets  the  son  free  from  his 
subjection,  and  gives  him  the  capacity  of  managing  his  own 
affairs  as  if  he  was  of  age."  The  following  is  given  as  a  con- 
densed statement  of  the  facts:    'Tn  the  spring  or  summer  of 

1852,  plaintiff's  son,  a  minor  of  the  age  of  seventeen,  went  to 
reside  at  defendant's  house,  and  was  then  and  afterwards  em- 
ployed by  him  as  a  hired  hand  for  over  one  year;  the  defend- 
ant paying  the  son  full  w^ages  for  his  services.     In  Februar}-, 

1853,  plaintiff  sued  defendant  to  recover  for  the  services,  in 
which  suit  the  judgment  was  for  the  defendant.  The  son  was 
of  a  dissatisfied  and  roving  disposition,  careless  and  improv- 
ident in  his  habits,  not  under  parental  control,  and,  either 
through  wilfulness  or  negligence,  had  not  received  the  educa- 
tion proper  for  a  person  of  his  age  and  condition.  In  Decem- 
ber, 1 85 1,  a  misunderstanding  arose  between  the  parent  and 
the  child,  which  resulted  in  the  son's  leaving  home,  and  resid- 
ing and  working  at  various  places,  before  he  went  into  the 
defendant's  serv"ice.  After  said  December,  1851,  the  father  did 
not,  apparently,  have  or  exercise  the  proper  and  necessary 
control  and  authority  over  the  said  minor  that  a  parent  of  a 


192  PARENT  AND   CHILD. 

well-regulated  family  ought  and  should  exercise,  and  permitted 
and  sanctioned  the  hiring  out  of  said  minor  at  various  places, 
and  at  different  employments,  away  from  home ;  but  who  made 
the  contracts,  or  received  tlie  pay,  is  not  stated  nor  proved.  The 
father  had  also  stated  that  he  had  no  control  over  his  son,  and 
had  in  some  instances  waived  his  authority  over  him.  It  also 
appears  that  on  the  nth  of  September,  1852,  the  plaintiff,  by 
publication  in  a  newspaper,  forewarned  all  persons  from  cred- 
iting his  said  son  on  his  account,  avowing,  also,  therein  that 
he  would  pay  no  debts  of  his  contracting,  and  that  he  would  not 
fulfill  any  contracts,  or  pay  debts,  entered  into  by  him."  The 
court  say :  "From  these  circumstances,  to  mention  none  others, 
we  think  tlie  court  might  fairly  conclude  there  was  a  manu- 
mission or  emancipation  up  to  the  time  above  stated,  and  that 
there  was  no  liability  for  giving  the  son  shelter,  residence,  and 
a  home.  At  least,  we  think  it  so  fairly  deducible  from  the  facts 
that  we  should  not  disturb  the  conclusion." 

The  circumstances  disclosed  in  this  case  are  these :  The  de- 
fendant's daughter,  at  the  age  of  14,  went  to  reside  away  from 
her  father's  house,  at  a  place  thirty  miles  distant,  where  for 
three  years  she  contracted  for,  earned  and  controlled  her  own 
wages,  and  provided  herself  with  clothing,  her  father  consent- 
ing thereto ;  he  not  furnishing,  or  agreeing  to  furnish,  her  with 
any  money,  or  means  of  support.  That,  while  thus  absent,  she 
was  dangerously  attacked  with  typhoid  fever,  and  at  her  re- 
quest was  attended  by  the  plaintiff,  as  her  physician,  from  day 
to  day,  for  a  period  of  twenty-one  days,  which  services  were 
rendered  without  the  procurement,  knowledge,  or  consent  of 
the  defendant.  These  circumstances  are  widely  different  from 
those  in  Everett  v.  Sherfey.  Here  there  was  no  disagreenient 
that  resulted  in  the  daughter  leaving  home;  no  wantor  waiver 
of  parental  authority;  no  dissatisfied  and  roving  disposition; 
no  statement  by  the  father  that  he  had  no  control  over  his 
daughter;  and  no  publication  by  the  father  notifying  persons 
not  to  credit  her  on  his  account. 

The  circumstances  disclosed  in  this  case  are  such  as  are  of 
frequent  occurrence  in  this  country.  Parents,  either^  from 
necessity  or  from  a  desire  to  teach  their  children  to  be  indus- 
trious and  self-supporting,  emancipate  them  from  service,  for 
a  definite  or  indefinite  time,  without  any  intention  of  thereby 
releasing  their  right  to  exercise  care,  custody  and  control  over 
the  child.  The  obligation  of  parents  to  support  their  minor 
children  does  not  arise  alone  out  of  the  duty  of  the  child  to 
serve.  If  so,  those  who  are  unable  to  render  service  because 
of  infancy,  sickness,  or  accident — who,  most  of  all  others,  need 


,  PORTER  V.  POWELL.  1 93 

support — would  not  be  entitled  to  it.  Blackstone,  in  his  Com- 
mentaries (volume  I,  p.  446),  says:  "The  duty  of  parents  to 
provide  for  the  maintenance  of  their  children  is  a  principle  of 
natural  law, — an  obligation,  says  Pufifendorf,  laid  on  them,  not 
only  by  nature  herself,  but  by  their  own  proper  act  in  bringing 
them  into  the  world ;  for  they  would  be  in  the  highest  manner 
injurious  to  their  issue  if  they  only  gave  their  children  life  that 
they  might  afterwards  see  them  perish.  By  begetting  them, 
therefore,  they  have  entered  into  a  voluntary  obligation  to  en- 
deavor, as  far  as  in  them  lies,  tliat  the  life  which  they  have  be- 
stowed shall  be  supported  and  preserved.  And  thus  the  chil- 
dren will  have  the  perfect  right  of  receiving  maintenance  from 
their  parents."  This  obligation  to  support  is  not  grounded  on 
the  duty  of  the  child  to  serve,  but  rather  upon  the  inability  of 
the  child  to  care  for  itself.  It  is  not  only  a  duty  to  the  child, 
but  to  the  public.  The  duties  extend  only  to  the  furnishing  of 
necessaries.  What  are  necessaries  must  be  determined  by  the 
facts  in  each  case.  The  law  has  fixed  the  age  of  majority ;  and 
it  is  until  that  age  is  attained  that  the  law  presumes  the  child 
incapable  of  taking  care  of  itself,  and  has  conferred  upon  the 
parent  tlie  right  to  care,  custody,  control  and  services,  with  the 
duty  to  support. 

3.  There  being  no  direct  evidence  as  to  the  purposes  of  the 
defendant  with  respect  to  his  daughter,  we  are  to  say  with  what 
intention  he  consented  to  his  daughter's  going  and  remaining 
away  from  his  home  as  she  did.  That  he  intended  she  should 
control  her  own  earnings,  at  least  until  such  time  as  he  should 
declare  otlierwise,  is  evident,  but  that  it  was  ever  his  intention 
that  if,  by  sickness  or  accident,  she  should  be  rendered  unable 
to  support  herself,  he  w'ould  not  be  responsible  to  those  who 
might  minister  to  her  actual  necessities,  we  do  not  believe. 
Such  an  inference  from  these  facts  would  be  a  discredit  to  any 
father.  In  our  view,  there  was,  at  most,  but  a  partial  emanci- 
pation,— an  emancipation  from  service  for  an  indefinite  time. 
The  father  had  a  right  at  any  time  to  require  the  daughter  to 
return  to  his  home  and  service ;  and  she  had  a  right  at  any  time 
to  return  to  his  service,  and  to  claim  his  care,  custody,  control 
and  support.  There  was  no  such  an  emancipation  as  exempted 
the  father  from  liabilit}^  for  actual  necessaries  furnished  to  his 
daughter.  In  view  of  the  legal  as  well  as  the  moral  duty  of 
appellant  to  furnish  necessary  support  to  his  daughter  during 
minority,  and  especially  when  unable,  from  infancy,  disease, 
or  accident,  to  earn  her  own  necessary  support,  we  think  he 
may  well  be  understood  as  promising  payment  to  any  third  per- 
13 — Cases  Dom.  Rel. 


ig4  PARENT  AND   CHILD. 

son  for  actual  necessaries  furnished  to  her.  As  already  stated, 
what  are  necessaries  must  be  determined  from  the  facts  of 
each  case.  What  would  be  necessary  support  to  a  child  in  sick- 
ness would  not  be  necessar}'  in  health.  The  services  sued  for 
were  evidently  necessary  for  the  support  and  well-being  of  the 
defendant's  daughter.  As  we  have  seen,  he  had  not  relieved 
himself  from  the  duty  to  furnish  her  such  support,  and,  from 
his  obligation  to  do  so,  may  be  presumed  to  have  promised 
payment  to  any  one  who  did  furnish  it  in  his  absence.  Our  con- 
clusion Is  that  the  judgment  of  the  district  court  should  be 
affirmed. 

Beck,  J.,  delivered  a  dissenting  opinion. 

2.    Emancipation. 

State  V.  Lowell,  78  Minn.  166,  80  N.  W.  877,  ante, 

p.  9. 
Commomvealth  v.  Graham,  157  ]\Iass.  73,  31  N.  E.  706, 

ante,  p.  80. 
Porter  v.  Powell,  79  Iowa  151,  44  N,  W.  295,  ante, 

p.  189. 


,rcrH,rHrP.;r.r';.^.„n  LIBRARY 


FACILITY 


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